Moseley v Queanbeyan-Palerang Regional Council (No 3) [2018] NSWLEC 111

Land and Environment Court New South Wales

Medium Neutral Citation: Moseley v Queanbeyan-Palerang Regional Council (No 3) [2018] NSWLEC 111 Hearing dates: 5 February 2018, 9 February 2018, 21 March 2018 Written submissions Date of orders: 30 July 2018 Decision date: 30 July 2018 Jurisdiction: Class 6 Before: Pain J Decision: The Council's application for costs in the stated case is dismissed. Catchwords: ENVIRONMENTAL OFFENCES – COSTS – exercise of discretion whether to award costs thrown away in course of finalising stated case to Court of Criminal Appeal Legislation Cited: Crimes (Appeals and Review) Act 2001 s 49, 70 Palerang Local Environmental Plan 2014 Cases Cited: Barton v Berman [1980] 1 NSWLR 63 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 Queanbeyan City Council v Kovacevic (No 2) [2015] NSWLEC 196 White v Ridley (1978) 140 CLR 342; [1978] HCA 38 Category: Costs Parties: Benjamin Moseley (Appellant) Queanbeyan-Palerang Regional Council (Respondent) Representation: COUNSEL: C Birch SC (Appellant) N Hammond (Respondent)

SOLICITORS: Jack C Herrald (Appellant) Bradley Allen Love (Respondent) File Number(s): 2016/227474

Judgment 1. I dismissed an appeal by Mr Moseley against his conviction in the Queanbeyan Local Court for carrying out development which required development consent under the Palerang Local Environmental Plan 2014 without such consent in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52. Mr Moseley asked me to file a stated case to the Court of Criminal Appeal a process which involved a number of court appearances. Queanbeyan-Palerang Council (the Council) seeks some of its costs of the stated case which it claims were thrown away. The costs order sought is opposed by Mr Moseley. 2. A chronology was provided by the Council as follows: Date Event 18 Aug 2017 Appellant filed stated case including Draft Proposed Questions of Law (4 short questions). Directions hearing. 1 Sept 2017 Appellant was self-represented. Respondent Council's legal representatives appeared and handed up 10 page written submissions including 4 redrafted proposed questions of law. Directions hearing. 19 Sept 2017 Mr Herrald, solicitor, appeared for Appellant and Ms Hammond of counsel appeared for the Respondent Council. Matter adjourned to provide Appellant opportunity to obtain legal advice from counsel on utility. Directions hearing. 17 Oct 2017 Mr Bolger of counsel appeared for Appellant and Ms Hammond appeared for Respondent Council. Mr Bolger indicated an intention to provide the Court with revised questions of law and sought an adjournment. Council indicated that it did not oppose the adjournment but was concerned about the costs of responding to new questions, and indicated that it would seek its costs of the next appearance and of responding to the new questions. 30-31 Oct 2017 Appellant served further draft stated case and written submissions on the Respondent and Pain J's Associate. Amended draft stated case included new proposed questions. 7 Nov 2017 Appellant served Respondent with a further revised draft stated case, comprising 14 new proposed questions (Revised Stated Case). 21 Nov 2017 Respondent served Appellant and Pain J's Associate with written submissions and 4 revised proposed questions. Directions hearing. 23 Nov 2017 Mr Birch SC appeared for Appellant and Ms Hammond appeared for Respondent Council. Parties made submissions on competing draft questions and written submissions. Mr Birch SC submitted 14 proposed questions; the Council submitted 3 proposed questions. The Court ordered the parties to provide the Court with a final agreed version of the Council's proposed questions. 30 Nov 2017 Parties provided the Court with final agreed version of the stated case, including 4 questions. 1 Dec 2017 Pain J adopted and signed the stated case provided by the parties with minor amendments.