Maxwell and Anor v Warringah Shire Council and Anor [2005] NSWLEC 90

Land and Environment Court of New South Wales

CITATION : Maxwell and Anor v Warringah Shire Council and Anor [2005] NSWLEC 90

FIRST APPLICANT S Maxwell

SECOND APPLICANT M Corbett

PARTIES : FIRST RESPONDENT Warringah Shire Council

SECOND RESPONDENT Duffys Forest Residents Association .

FILE NUMBER(S) : 11195 of 2003

CORAM: Moore C

KEY ISSUES: Costs :-

Harb v Wyong Shire Council (No 2) [2004] NSWLEC 724; CASES CITED: Latoudis v Casey (1990) 170 CLR 534 ; .

DATES OF HEARING: 4 March 2005 EX TEMPORE JUDGMENT DATE : 03/04/2005

APPLICANTS Mr J Cole, solicitor Abbott Tout

LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr K Webber, solicitor Wilshire Webb

SECOND RESPONDENT -

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

4 March 2005

04/11195 Maxwell and anor v Warringah Shire Council and anor This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT 1 Commissioner: On 2 November 2004, I gave a decision concerning costs on a number of matters which had arisen these proceedings.

2 In order to give effect to that decision, a copy of the precise terms of the orders to which I had proposed to seek the Chief Judge's concurrence was provided to the parties just prior to Christmas 2004. These were provided to give specific detail in amplification of my earlier decision and to enable the parties to make submissions to the Chief Judge. 3 In response to those proposed orders, the parties made submissions to the Chief Judge as part of the concurrence process pursuant to s 69(8) of the Land and Environment Court Act 1979 (the Court Act). 4 In the first instance, those submissions were also provided to me to read. Having done so, it seemed to me that the nature of those submissions significantly misconceived the role of the Chief Judge pursuant to s 69(8) of the Court Act. 5 His role essentially, as I understand it and has been applied consistently by him, is a "yes or no" role – which is necessarily implied from the terms of s 69(8) referring to his concurrence in the making of proposed orders. 6 His role does not constitute one, as I apprehend it, where the concurrence role can be used either as an informal substitution for an appeal pursuant s 56A of the Court Act if a party considers a commissioner's discretion has significantly miscarried nor does it provide an opportunity for the Chief Judge to alter or amend the orders proposed in proceedings. 7 As I wished to ensure that the matter proceeds expeditiously, on 4 February the matter was mentioned before me. During the course of this mention, I provided the parties with possible framework of orders which subsumed not only those orders which arose out of my decision of 2 November 2004 but also the earlier consent orders concerning costs which the applicants had agreed were appropriate to be met by them. 8 The new form of the orders which I provided to the parties was based on orders for payment of nominated sums to each of the first and second respondents for three reasons which were set out in the proposed orders. 9 The first were costs thrown away by adjournment of the proceedings on 8 September 2004; the second for costs thrown away by my granting on 2 November 2004 leave to amend the application significantly and the third for preparation for and the hearing of 2 November 2004. 10 The first of those necessarily must be accompanied by vacation of the consent orders of 8 September. 11 The parties have now agreed to that structure of orders as a means of resolution of the costs issues. On 4 February, I indicated to the parties that it seemed to me that there were three ways forward. These were: 12 First, that I might nominate the amounts for orders two and three; 13 Second, that I provide to the parties for their guidance what I considered to be an appropriate range within which settlement might be; or 14 Finally, the parties themselves might simply reach agreement on the numbers to be completed. 15 From the further submissions from all the parties, they prefer the first course of action and that I determine the numbers to be filled in initial proposed orders 2 and 3, the parties being unable to reach agreement on the resulting numbers themselves 16 I am prepared to do so this morning and to provide short reasons why I have reach my conclusions.