Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 146

Land and Environment Court of New South Wales

CITATION : Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 146

APPLICANTS: John Henry Taylor and Mildred Joy Taylor PARTIES : RESPONDENT: Port Macquarie-Hastings Council

FILE NUMBER(S) : 30623 of 2005

CORAM: Biscoe J

KEY ISSUES: COSTS :- contending without notice during a costs hearing that the other party's costs are disproportionate and seeking to tender supporting evidence.

LEGISLATION CITED: Civil Procedure Act 2005, s 60 Uniform Civil Procedure Rules, r 42.5

DATES OF HEARING: 3 August 2010

EX TEMPORE JUDGMENT DATE : 3 August 2010

APPLICANTS: Mr T S Hale SC with Mr J R Dupree SOLICITORS Russo & Partners LEGAL REPRESENTATIVES: RESPONDENT: Mr T Robertson SC with Mr J Lazarus SOLICITORS Donovan Oates Hannaford

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BISCOE J

3 August 2010

30623 of 2005

JOHN TAYLOR AND ANOR v PORT MACQUARIE-HASTINGS COUNCIL

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a costs hearing. The applicants object to the respondent reading the affidavit of Mr Steven Miles, the respondent's solicitor, of 2 August 2010 and oppose the respondent's notice of motion to vary an interlocutory order made on 27 July 2010 to which it is said to be relevant. BACKGROUND On 1 July 2010 I delivered reasons for judgment in this action for compensation for the compulsory acquisition of land and reserved costs. Directions were made for evidence and submissions relating to costs and the matter was listed on 3 August 2010 for a costs hearing as well as for the making of final orders (which required statutory interest to be assessed). 2 On 27 July 2010 I heard the applicants' notice of motion to set aside, as an abuse of process, the respondent's notice to the applicants to produce a statement of their costs and disbursements for various periods between 2005 and 2010. Following discussion on that occasion between bench and bar, consensual orders were made that the applicants provide the respondent with statements of their costs and disbursements for specified periods and that the respondent use that information only for the purpose of formulating an offer of compromise as to costs and without prejudice to any ultimate assessment of costs by a costs assessor. 3 Late this morning, during the costs hearing, the respondent sought to read the solicitor's affidavit to which I have referred which sets out a calculation of the council's legal costs and disbursements in the periods referred to in the order of 27 July. The applicants objected on the ground of relevance. 4 The respondent thereupon informed me that it had been provided with the costs information the subject of the 27 July order on 29 July and recently had filed a notice of motion returnable today seeking a variation of the order of the court made on 27 July to permit the respondent to disclose that information to the Court. The respondent sought to move on the notice of motion instanter. The respondent told me that it wished to disclose that costs information to the Court in order to mount an argument that the applicant's costs are disproportionate; and that their solicitor's affidavit was relevant to that issue. That came as a surprise to the applicants and to me. It had not been mentioned in the respondent's written costs submissions nor at any time before it arose through the back door in the context of the objection to the affidavit. The notice of motion could not be located in the Court file. I was provided by the respondent with an unsealed copy which I gave leave to file in Court and proceeded to hear instanter.