Jonathan v Kyogle Council [2012] NSWLEC 16

Land and Environment Court New South Wales

Medium Neutral Citation: Jonathan v Kyogle Council [2012] NSWLEC 16 Hearing dates: 13 February 2012 Decision date: 13 February 2012 Jurisdiction: Class 1 Before: Biscoe J Decision: Applicant to pay respondent's costs. Catchwords: COSTS:- Class 1 appeal against refusal of development application dismissed for want of prosecution - whether applicant should be ordered to pay respondent's costs - applicant submitted that he is not subject to jurisdiction of Council or the Court. Legislation Cited: Civil Procedure Act 2005 s 98 Commonwealth of Australia Constitution Act cl 5, ss 75 and 116 Land and Environment Court Rules 2007 r 3.7 Cases Cited: Jonathan v Kyogle Council [2011] NSWLEC 223 Marinkovic v Rockdale City Council [2006] NSWLEC 601 Port Stephens Council v Sansom [2007] NSWCA 299, 156 LGERA 125 Category: Costs Parties: jonathan (Applicant) Kyogle Council (Respondent) Representation: COUNSEL: jonathan (Applicant, in person) Mr J Atkin (Respondent) SOLICITORS: N/A (Applicant) Walters Solicitors (Respondent) File Number(s): 10008/11

ex tempore Judgment 1On 25 November 2011 I dismissed for want of prosecution an appeal by the applicant, " jonathan ", against a deemed refusal by the respondent, Kyogle Council, of a development application: Jonathan v Kyogle Council [2011] NSWLEC 223. I reserved costs. 2I am now hearing the Council's motion that the applicant pay the Council's costs. I am also hearing a notice of motion filed in court today by the applicant seeking the following orders: 1. The court dismisses the Respondent's Motion for costs in the hearing set for 13/2/2012 based on the Applicant's Affidavit supporting this Motion, or 2. The court dismisses the Respondent's Motion for costs based on its lack of jurisdiction over jonathan  in this matter, or 3. The court adjourns the matter while it responds to the Applicant's request to show its jurisdiction over jonathan  in this matter, or 4. The court considers this Motion under Common Law or Commonwealth Law since the Applicant in this matter is a certified Commonwealth Public Official, or 5. The court gives leave for this matter to be considered in a Common Law Court and to be decided by a jury, or 6. The court, taking notice that the Applicant is and was before the appeal was lodged, a Treaty member of the Githabul Ngarakbul Tribes and is only subject to Tribal Law in this matter and 7. The court takes note that the Applicant is now relying on the Commonwealth of Australia Constitution Act (1900) in particular Section 116 (religious freedoms) and 8. The court takes note that the Applicant is and was an Ordained Minister of Religion and is and has been practicing [sic] religion on the sacred property known as Eden Creek Spiritual Sanctuary and 9. The court takes note that jonathan  has settled the matter using a private administrative process and that there is now a Default Judgment in place and 10. The court considers awarding the Applicant's costs against the Respondent when due and lawful regard is given to the circumstances of the case, or 11. The court adjourns the matter for at least 3 weeks while jonathan's  offer to cure all commercial liability is made and considered. 3The applicant challenges the jurisdiction of the Council and of the Court on the following bases. First, he says that he has no contract with the Council and the Court and therefore any law invoked is not binding on him nor is any order of the Court. 4Secondly, he says that he has not consented to the jurisdiction of the Council or the Court. 5Thirdly, he says that he is a treaty member of certain Aboriginal tribes and is only subject to tribal law. He refers to s 75(i) of the Commonwealth Constitution which provides that "In all matters: (i) arising under any treaty...the High Court shall have original jurisdiction". 6Fourthly, he says that he is an ordained minister of a religion and refers to s 116 of the Commonwealth Constitution, which relevantly provides that "The Commonwealth shall not make any law for...prohibiting the free exercise of any religion". He also refers to clause 5 of the Constitution. He submits that the Council and the Court have the unlawful effect of prohibiting religion on the subject "sacred" property. 7Fifthly, he says that he has privately taken the oath of allegiance of a Commonwealth government official and that means that there is a duty of care owed to him and conversely he owes a duty of care. He submits that any costs order might have consequences because of that duty of care. I had understood him at one point to be suggesting that only Commonwealth law applies to Commonwealth government officials but, as I understand it, he ultimately does not go that far. 8I do not accept the applicant's submissions as to jurisdiction. Jurisdiction is not dependent upon any contract between the applicant, on the one hand, and the Council or the Court, on the other. Nor is it dependent upon the applicant's consent to jurisdiction. I do not consider that the provisions of the Constitution to which reference has been made have any relevant application. The alleged duty of care (assuming it to exist) seems to me to be irrelevant for present purposes. 9I decline to accede to the applicant's request for an adjournment, for which I can see no reasonable basis. 10I turn to the substance of the costs issue. 11The discretion of the Court to make an order for costs has its foundation in s 98 of the Civil Procedure Act 2005. The opening words of subsection (1) provide that the discretion is subject to the rules of Court. The Court has a rule which deals with orders for costs in Class 1 proceedings such as this. Rule 3.7(2) of the Land and Environment Court Rules 2007 provides as follows: The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. 12This subrule creates a presumption against an order for costs, it being necessary for the party applying for an order to demonstrate that it is "fair and reasonable" to make it: Port Stephens Council v Sansom [2007] NSWCA 299, 156 LGERA 125. In Marinkovic v Rockdale City Council [2006] NSWLEC 601 Preston CJ dealt with a number of matters giving rise to a costs order under the subrule, including the following: unacceptable delays to the court timetables (at [3]); the applicant's development application was deficient and was in a form that could not be approved (at [6] - [7]); unacceptable delays by the applicant in prosecuting his appeal (at [9] - [10]); and the applicant sought numerous times to amend his application by plans that were not acceptable ([27] - [39]). 13In my earlier judgment I recounted the history of the matter, which portrayed the applicant's conduct of the proceedings as poor. The history was based on the evidence put before me by the Council at the hearing of its motion to dismiss for want of prosecution. This morning the applicant challenged from the bar table the accuracy of several facts in that history, whilst acknowledging that he did not appear, and put forward no contrary evidence or submissions, at the earlier hearing. It may be that, at least in part, the applicant's challenge is founded on his different perception as to some matters, such as whether the amendments to which I referred in my earlier judgment were of a minor nature or not. Be that as it may, there is no issue that the facts I recounted reflected the evidence put before me on the earlier occasion. Even if there were now to be a change in findings as to the challenged facts (which I do not think has been established), I do not think it would bring about a different costs result. 14The applicant claims to have warned the Council of risks before he commenced the proceedings and that it had no tenable position. Assuming that such warnings were given, I do not think that they have any significance on costs given that the Council has succeeded on the basis of the applicant's want of prosecution of the proceedings. 15The applicant says that he has settled the costs issue using an "administrative process" and that there is now a "default judgment" in place in his favour against the Council. I do not think that this is a relevant matter on costs. As I understand it, this "administrative process" and "default judgment" are creatures of the applicant's self - proclaimed regime in which he seems to believe but which has no status under law. I asked the applicant in which court this "default judgment" could be enforced but he declined to answer. 16In my opinion, the Council having succeeded on its motion that the proceedings be dismissed for want of prosecution, it is fair and reasonable in the circumstances that the applicant pay the Council's costs. 17Accordingly, the order of the Court is that the applicant pay the respondent's costs. 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. Decision last updated: 15 February 2012