> Land and Environment Court of New South Wales CITATION : Michelsen, A F v Gosford City Council [2003] NSWLEC 452 APPLICANT: Michelsen, A F PARTIES : RESPONDENT: Gosford City Council FILE NUMBER(S) : 40483 of 2002 CORAM: Bignold J KEY ISSUES: Costs :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27/06/2003 EX TEMPORE JUDGMENT DATE : 06/27/2003 APPLICANT: in person SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: A J J Thompson, Barrister SOLICITORS P J Donnellan & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 27 June 2003 40483 of 2002 A.F. MICHELSEN v GOSFORD CITY COUNCIL JUDGMENT HIS HONOUR 1. This is a Motion filed in court on 9 April 2003 seeking an order that the Applicant in these class 4 proceedings pay the respondent's costs in the proceedings. 2. Proceedings were concluded on 20 December 2002 when orders were made for the reasons given in my judgment published on 20 December [2002] NSWLEC 249. The application before me on that day was an application to strike out the class 4 proceedings which Mr Michelsen commenced in the Court on 9 August 2002. In those reasons for judgment, I traversed the history of the litigation before expressing the following opinion in par 12 of those reasons: I have great sympathy for the Applicant and his present plight which appears to be dire based upon his recent representation of it at least. 3. I was there referring to a facsimile transmission sent by Mr Michelsen to the Court that very day and in fact handed to me in the course of hearing and I refer to it in terms in par 9 of the reasons for judgment. Returning to paragraph 12, I there said: Nonetheless the case cannot be hanging over the Council's head, and the failure to prosecute it with any kind of efficiency must ultimately lead to the decision that the case must be struck out. 4. In paragraph 13 I said this— However because of the particular plight pleaded by Mr Michelsen, and his apprehension of the dire consequences for him of the failure of his case, my decision to uphold the Council's strike out Motion should be understood on the basis of the Applicant's failure to comply with the relevant directions of the Court, failure to properly plead the case, and failure to present any opposition to the Council's notice of Motion. In the circumstances I would provide that the order be stayed for a period of 60 days from today's date. If the Applicant moves to set aside the judgment within 60 days the judgment will continue to be stayed until determination of any application to set aside. 5. In other words, the judgment as Mr Thompson on behalf of the Council aptly put it, "is more in the nature of a default judgment". 6. In support of its Motion for costs the Council relies upon the affidavit of Pauline Jennifer Wright, sworn on 21 March 2003. She is a Solicitor and an employee of the Council's Solicitor who had carriage of the matter, and her affidavit essentially traverses the history of the litigation including action taken by her firm upon receiving instructions from the Council on 21 August 2002. Included in that affidavit as an annexure is a letter that was written to Mr Michelsen on 5 December 2002, referring to the matter coming before the Court on 6 December 2002. In that letter, Mr Michelsen was advised: We confirm our advice that if you discontinue the proceedings at this stage we will not be seeking a cost order against you. If however you do not agree to discontinue at this stage we are instructed to pursue an order for costs. 7. When the matter came before me on 6 December 2002, Mr Michelsen was unable to attend because of illness. APPLICANT: And also that was the day that the fires were halting traffic on the Pacific Highway and also on a train network as well and I could not get here anyway. 8. I made these orders: 1. That the proceedings be stood over for directions on 20 December. 2. Costs reserved. 3. The Applicant to comply with the directions made by consent on 1 November on or before the 20th and the Applicant to provide a medical certificate. 9. On 20 December 2002, the Council moved to have the proceedings struck out, as indeed they had advised in their letter to Mr Michelsen on 6 December 2002 when they said: We are instructed to proceed with our client's Motion to strike out your application on the next occasion it comes before the Court Please ensure that you are there, as we will proceed in your absence should you not appear or be represented. 10. As I have earlier indicated, on 20 December 2002, the Motion to strike out came before the Court in circumstances where Mr Michelsen was again because of his state of health unable to attend and I have already mentioned that in the course of the proceedings a facsimile transmission sent by him came before the Court and was read and taken into account without objection from the Council's legal representative. 11. In her affidavit, Miss Wright indicates that no application to set aside the default judgment was made within the 60 day period, and of course the consequence of that is that judgment was a self-executing judgement and the proceedings in the absence of Motion to set aside stand dismissed. 12. The application for costs made by the Council is, of course, to recover costs on the basis that costs have been expended in the proceedings which have been dismissed and the Council should be compensated for those costs. 13. Mr Michelsen has clearly been under extreme difficulties throughout the history of the litigation, brief though it may have been. Indeed his serious state of lack of health and anxiety about the matter giving rise to his proceedings has dogged him for the last two or three years. He has been unable to obtain any legal assistance in the proceedings despite his several efforts to obtain such assistance. He has my sympathy as recorded in my judgment on 20 December 2002 and that sympathy is extended to today. It appears that Mr Michelsen is in a state of continued lack of health and that his financial circumstances are such that he has no ready income source to live on at all. Thus, his circumstances can be aptly described as being both impecunious and parlous in terms of his state of health. 14. The proceedings having been disposed of should be concluded so that he no longer be vexed by their existence even though of course they were proceedings brought by himself. He has been unable to pursue them with any efficiency and has been unable to obtain any necessary legal assistance. 15. Conventional principles apply to the exercise of the Court's discretion in the present case and as such the Court must make the order for costs as sought. However, in making the cost order I would invite the Council's legal representatives to bring to the Council's attention the submission made to the Court today by Mr Michelsen, the contents of which speak for themselves and indicate the extreme distress and illness physical and psychological suffered by Mr Michelsen over these past two or three years since his apprehension of the adverse consequences to him of the development consent on the neighbouring land granted by the Council in 2000. The submission also indicates that Mr Michelsen has made many attempts to obtain legal assistance but has been entirely unsuccessful despite his widespread efforts. 16. The Council is also invited to have regard to the representation made in its letter of 5 December 2002 which I have earlier quoted. When it was stated in confirmation of advice previously given to Mr Michelsen: That if he discontinued the proceedings at this stage the Council would not be seeking an order for costs. However if you do not discontinue at this stage we are instructed to pursue our order for costs . 17. Costs were obviously incurred by the Council thereafter, because in my reasons for judgment on 20 December 2002, I make reference to two affidavits that were relied upon by the Council in support of their strike-out Motion which came into existence after the matter was before me on 6 December 2002. 18. This is unfortunate because in truth, the Applicant Mr Michelsen has not been able to advance his case one iota since 5 December 2002 and the effect of the judgment dismissing the proceedings for want of prosecution by dint of the default judgment really means that his case was not advanced an iota between 5 December 2002 and 20 December 2002 during which period he continued to be stricken with ill health and adverse circumstances. 19. Nonetheless, the Council has legitimately incurred the expenses of having the affidavits prepared in support of its Motion for strike out which came before me on 20 December 2002. And as I say, in the exercise of the discretion conferred upon me I must make the order for costs. But I draw attention to that representation in the Council's Solicitor's letter of 5 December 2002, which would indicate that the costs incurred thereafter should be the focus of any action that the Council might be minded to take with the benefit of the order for costs. 20. It of course is not for the Court to interfere with the rights of any party to enforce an order including an order for costs obtained from the Court in any proceedings, but in this particular case there are clamant reasons which require in my opinion a very careful consideration by the Council and it is of the circumstances of this case, the history of the litigation, the incapacity of the Applicant to pursue it in the absence of legal assistance which he has unsuccessfully sought to obtain. The case is a sad case and in making the order one would not wish to inflict any further grief or distress upon the unsuccessful Applicant. For all the foregoing reasons I order that the Applicant pay the Council's costs of the proceedings in the sum agreed or failing agreement, as assessed and the reasons for judgment will be made available as soon as possible so that the matters that I have referred to for consideration by the Council can be rightly brought to their attention together with a copy which I will make available now of Mr Michelsen's submission to me today. 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.