Land and Environment Court of New South Wales CITATION : Marrickville Council v Desder Edwards [2002] NSWLEC 78 revised - 20/08/2002 APPLICANT Marrickville Council PARTIES : RESPONDENT Desder Edwards FILE NUMBER(S) : 40233 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- order for costs against mentally ill party refused Guardianship Act 1987 LEGISLATION CITED: Local Government Act s 124 Protected Estates Act 1983 CASES CITED: Tzavellas v Canterbury City Council 105 LGERA 262; Oshlack v Richmond River Council [1998] 193 CLR 72 DATES OF HEARING: 22/04/02 EX TEMPORE JUDGMENT DATE : 04/22/2002 APPLICANT Mr A Thompson (Barrister) SOLICITORS Kencalo & Ritchie LEGAL REPRESENTATIVES: RESPONDENT Mr H Macrae (Solicitor) SOLICITORS Connery & Partners JUDGMENT: IN THE LAND AND MATTER No. 40233 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 22/04/02 Marrickville Council Applicant v Desder Edwards Respondent JUDGMENT 1. On 22 February 2002 the Court made an order prohibiting the respondent from keeping any dogs on the properties No 1 and No 3 Miller Street, Petersham. By notice of motion the applicant Marrickville Council ("the council") seeks an order that the respondent pay its costs of these proceedings. 2. The respondent is the owner of No 1 and No 3 Miller Street Petersham. The respondent came to the attention of the council in June 1994 when complaints were made by neighbours concerning the number of dogs being maintained in her residence. The affidavits of Stephen Bernard Toohey of 10 December 2001 records the council's attempts to limit the number of dogs on the respondent's premises to one and of the actions taken by the respondent to circumvent the council's actions. 3. An order under section 124 of the Local Government Act was issued by the council on 13 June 1996, and further orders were issued on 15 July 1999 and on 2 November 2000. Despite repeated complaints by neighbours over a period of six years, the council had been unsuccessful in achieving a permanent solution. Accordingly these proceedings were instituted and were not opposed. The Court declined to make orders for the destruction of the dogs, but did make the order prohibiting the keeping of dogs at No 1 and No 3 Miller Street, Petersham. 4. The council has been put to costs and expense in pursuing the respondent and is prima facie entitled to an order for its costs for these proceedings. Although there has been some criticism by the respondent of alleged laxity on the part of the council in pursuing the claim, the Court is not able to draw any such inference. The correspondence suggests that council had acted with due expedition in the circumstances. 5. On 10 January 2000, the Guardianship Tribunal made an order entitled a "Financial Management" order under the Guardianship Act 1987 placing the estate of Ms Desder Edwards under the Protected Estates Act 1983 and committing the management of her estate to the Protective Commissioner. Subsequently on 14 June 2000 an order was made by the Guardianship Tribunal varying the Financial Management order and appointing Mr Graham Deigan as manager of the property and affairs of Ms Desder Edwards. However on 6 July 2001, the management of the respondent's estate was returned to the Protective Commissioner. 6. The Court has been provided with the reasons for the decisions of the Guardianship Tribunal of 10 January 2000 and of 14 June 2000. They disclose that Dr Halliday was of the opinion that the respondent suffers from significant impairment functioning requiring continuing observation and support. The Tribunal concluded that the respondent was suffering vascular disease causing frontal lobe syndrome with impairment of executive functioning. Such condition is causing major problems in the ability of the respondent to care for herself. In addition she suffers some delusional ideation or personality disorder. The Tribunal also found that Ms Edwards was not capable of managing her affairs, that she was unable to maintain her property and that she requires ongoing support and assistance. 7. The respondent owns several unencumbered properties in Sydney and there is no evidence of financial hardship which might be caused if an order were made. Even if a respondent is impecunious such circumstance may not constrain the Court from making an order that such person pay costs: see Tzavellas v Canterbury City Council 105 LGERA 262. 8. The Court is therefore faced with an application for costs against a person who is clearly suffering a disability. That disability may have directly impacted upon her understanding of her daily affairs as is indicated by the Tribunal. The fact that she had taken steps to try to circumvent council's orders to remove dogs and yet offered no opposition to a court order is explicable because of her condition. 9. In these circumstances the Court is of the opinion that because of the respondent's mental condition it would be inappropriate for any order to be made against her. Accordingly the application for costs is dismissed. 10. Whilst an application was made at the conclusion of this application that the respondent be entitled to an order for costs of this motion, it is also inappropriate. Council was prima facie entitled to an order to compensate it for its costs: see Oshlack v Richmond River Council [1998] 193 CLR 72. The applicant should not be penalised for having brought this motion just because the Court has taken into consideration the disability of the respondent. Accordingly no order for costs will be made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.