Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300

Reported Decision: 156 LGERA 150

New South Wales Court of Appeal

CITATION: Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 August 2007

JUDGMENT DATE: 25 October 2007

JUDGMENT OF: Spigelman CJ at 1; Mason P at 145; Beazley JA at 146; Giles JA at 149; Ipp JA at 155

DECISION: 1 Leave to appeal granted; 2 Direct the Claimant to file a Notice of Appeal within 14 days; 3 Upon the Notice being filed, appeal allowed; 4 Order that the Respondent pay the Appellant's costs in the Land and Environment Court before both Commissioner Brown and Justice Preston and in this Court.

CATCHWORDS: ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Act, s69 – regard must be given to legislative regime under which proceeding brought – Protection of the Environment Operations Act - ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Rules Pt 16, r 4 – Discretionary nature of award of costs – Role of principles or guidelines in exercise of a judicial discretion - ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Rules Pt 16, r 4 – Discretionary nature of award of costs – "no discouragement" principle impermissible constraint on exercise of discretion - ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Rules Pt 16, r 4 – Appropriate weight to be accorded to nature of proceedings – Characterisation of proceedings as "Class 1 proceedings" or "merits review proceedings" too broad – relevance of citizen resisting imposition of a liability - APPEAL – Practice and Procedure – New South Wales – Powers of court – Costs – Land and Environment Court Act, s57 – Supreme Court Act, s75A – Power of court to exercise costs discretion where no new findings of fact are required - STATUTES – Bylaws and regulations – Construction – Retrospective operation – Land and Environment Court Rules, Pt 16 r4 – Relevant issue is intended effect by enacting body – Whether the amendment is "procedural" or "substantive" not decisive - STATUTES – Bylaws and regulations – Construction – Retrospective operation – Land and Environment Court Rules, Pt 16 r4 – A power to award costs should be interpreted to ensure no injustice is done – Degree of injustice relevant – Where appeal on costs commenced the rules as they existed at the time apply