Gilling v. Hawkesbury City Council [1998] NSWLEC 97

Land and Environment Court of New South Wales

CITATION : Gilling v. Hawkesbury City Council [1998] NSWLEC 97 APPLICANT Gilling PARTIES : RESPONDENT Hawlkesbury City Council FILE NUMBER(S) : 20127 of 1997 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/05/98 EX TEMPORE JUDGMENT DATE : 05/07/1998

APPLICANT Mr. C. Gough, Solicitor Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Mr J. Cole, Solicitor Abbott Tout

JUDGMENT: This is an application by the Council for an order for costs in class 2 proceedings which were commenced in the Court last year, were fixed on 6 November 1997 for hearing by the Court for three days (20 to 22 January 1998) but which were terminated when the Applicant filed a Notice of Discontinuance on 12 January 1998, that is some seven or eight days before the fixed hearing date.

The Council's application for costs is based upon the fact of the discontinuance by the Applicant of the proceedings a little more than a week before the fixed hearing date.

Mr Gough, who appears for the Applicant, recognises that there is a body of authority in the Court that supports the proposition that, when proceedings are discontinued at or prior and close to, a fixed hearing date, the Court normally will award costs against the discontinuing party and that this principle operates as "exceptional circumstances" within the meaning of the Court's Practice Direction relating to costs in class 1 and class 2 proceedings. Mr Gough, however, submits that when regard is had to the litigation history, the Court would not regard the discontinuance by the Applicant as being unreasonable in the circumstances and, more relevantly, would not regard it as a cause or justification for an award of costs in accordance with the Court's Practice Direction.