Cachia v The Hills Shire Council [2010] NSWLEC 136

Land and Environment Court of New South Wales

CITATION : Cachia v The Hills Shire Council [2010] NSWLEC 136

APPLICANT Saviour Laurence Cachia PARTIES : RESPONDENT The Hills Shire Council

FILE NUMBER(S) : 20263 of 2010

CORAM: Preston CJ

KEY ISSUES: COSTS :- order issued by Council outside power - successful applicant seeks order for costs and compensation - applicant a litigant in person - whether fair and reasonable to award costs to reimburse applicant's out of pocket expenses - whether applicant should be compensated for expenses incurred as a consequence of the order - costs awarded to applicant

Civil Procedure Act 2005 s 98 Freedom of Information Act 1989 LEGISLATION CITED: Land and Environment Court Act 1979 s 18 Land and Environment Court Rules 2007 Local Government Act 1993 ss 124, 181

CASES CITED: Cachia v Hanes (1994) 179 CLR 403 Gardiner v Hornsby Shire Council [2000] NSWLEC 37

DATES OF HEARING: 6 July 2010

EX TEMPORE JUDGMENT DATE : 6 July 2010

APPLICANT In Person

LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser

SOLICITORS The Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

6 JULY 2010

20263 OF 2010

CACHIA V THE HILLS SHIRE COUNCIL

JUDGMENT A successful litigant in person seeks compensation 1 HIS HONOUR: Mr Cachia, the applicant in this appeal, seeks by notice of motion dated 16 May 2010 orders that the respondent, The Hills Shire Council, compensate him for his out-of-pocket expenses incurred in the appeal and/or as a consequence of an order issued by the Council under s 124 of the Local Government Act 1993. 2 There are two sources of power on which Mr Cachia seeks to rely: first, under the Court's power to order costs to a successful litigant under s 98 of the Civil Procedure Act 2005 and Pt 3 r 3.7 of the Land and Environment Court Rules 2007 and, secondly, the Court's power to award compensation under s 181 of the Local Government Act. 3 In relation to the first source of power, Mr Cachia seeks an order for reimbursement of his out-of-pocket expenses incurred in the appeal as a result of the Court, by the consent, upholding Mr Cachia's appeal and revoking the order under s 124 the Council had issued in respect of Mr Cachia's premises at 3 Yalding Avenue, Carlingford. 4 Mr Cachia submits by reason of these consent orders he has been successful in his appeal and that it is fair and reasonable that he should be compensated for the expenses he incurred and those incidental to the appeal. 5 In relation to the second source of power, Mr Cachia submits that the consent orders upholding the appeal and revoking the order under s 124 demonstrate that the giving of the order was unsubstantiated and that, under s 181(1) of the Local Government Act, he should be compensated for all expenses incurred as a consequence of the order. 6 The Council opposed Mr Cachia's motion and submits that there should be no order for costs or an award of compensation for Mr Cachia's expenses.