Land and Environment Court New South Wales Medium Neutral Citation: Nielson v Wingecarribee Shire Council [2019] NSWLEC 196 Hearing dates: 13 December 2019 Date of orders: 13 December 2019 Decision date: 13 December 2019 Jurisdiction: Class 4 Before: Pain J Decision: (1) The Council's notice of motion dated 28 November 2019 is dismissed. (2) The Council must pay the Applicant's costs of the notice of motion dated 28 November 2019 including on an indemnity basis from 12 December 2019. Catchwords: COSTS – review of Registrar's decision to award costs in Class 4 proceedings dismissed Legislation Cited: Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 ss 9.34, Sch 5 Uniform Civil Procedure Rules 2005 r 42.14 Cases Cited: Groeneveld v Wollongong City Council (2009) 168 LGERA 260 Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96 Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Walker v Siasat [2014] NSWLEC 86 Category: Procedural and other rulings Parties: Alexandra Caroline Nielson (Applicant) Wingecarribee Shire Council (Respondent) Representation: COUNSEL: L Nurpuri (Applicant) I Lacey, Solicitor (Respondent) SOLICITORS: B Bilinsky & Co (Applicant) Wingecarribee Shire Council (Respondent) File Number(s): 19/83262 EX TEMPORE Judgment 1. The Applicant commenced judicial review proceedings seeking a declaration of invalidity of a development control order to build a particular kind of fence in a specified timeframe issued by Wingecarribee Shire Council (the Council) under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Applicant alleged that the order was ultra vires, was issued for an improper purpose, and the Applicant was denied procedural fairness. Part of the Applicant's case included that the order was in conflict with a development consent issued by the Council. Before the first return date of the Class 4 proceedings the Council revoked the order under challenge. 2. The Applicant sought her costs of the proceedings before the Registrar. The Registrar heard the Applicant's application for costs on 20 June 2019. The Registrar made a costs order in favour of the Applicant on 1 November 2019 in Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529 (Registrar's decision). 3. The Council seeks a review of the Registrar's decision. The Council has filed a notice of motion dated 28 November 2019 which seeks an order setting aside the Registrar's decision and the costs order she made. It relied on an affidavit of its solicitor Mr Lacey dated 28 November 2019. His submissions to the Registrar were attached. 4. The Applicant's counsel referred to the affidavit of the Applicant Ms Nielson dated 15 May 2019 read before the Registrar, Mr Lacey's affidavit dated 28 November 2019 2019 which referred to Local Court proceedings commenced by the Council seeking to enforce the order also read before the Registrar, and her submissions made to the Registrar. 5. The Applicant read an affidavit of Mr Bilinisky solicitor dated 13 December 2019 in relation to the costs of this motion. It attaches correspondence between Mr Bilinsky and Mr Lacey which includes a Calderbank offer by Mr Bilinsky to the effect that if the Council withdrew its motion seeking review each party was to bear its own costs with the offer open until 2pm 12 December 2019. 6. In the Registrar's decision the Registrar outlined the background of the Class 4 proceedings, the relevant legal principles applying to the award of costs in Class 4 proceedings including citing numerous authorities at [24]-[29] and the parties' submissions on whether a costs order should be made in the Applicant's favour. After considering the reasonableness of the conduct of the parties, the Registrar concluded that the Applicant incurred unnecessary costs which warranted the exercise of her discretion to award the Applicant her costs. 7. The parties agree that the principles applying to a review of a Registrar's decision are identified in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [6]-[9] (Hodgson JA, Ipp JA agreeing) and Groeneveld v Wollongong City Council (2009) 168 LGERA 260. It is not an appeal. The Council as the mover of the motion bears the onus of establishing that the Court should set aside the Registrar's decision. The Court must be satisfied that it is in the interests of justice and otherwise reasonable to depart from the Registrar's decision before determining the matter afresh. Council's submissions 1. The Council submitted that where a decision finally determines a party's rights, a court may be more willing to intervene. A costs decision does impact on a party's rights. The Council submitted that the Registrar misapprehended the proper exercise of her discretion. The revocation of the order was a supervening event which the authorities suggest leaves the costs where they lie: Walker v Siasat [2014] NSWLEC 86 and other authorities. 2. The Registrar did not correctly apply Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96; (Kiama) at [80](b)(i) in determining that the Council had acted so unreasonably that a costs order should be made against it and, further, unreasonably departed from the principles she set out in her judgment. 3. The Registrar took into account irrelevant matters being events leading up to the commencement of these Class 4 proceedings. Only the conduct in these Class 4 proceedings is relevant. The Local Court proceedings commenced by the Council to enforce the order were not relevant yet the Registrar referred to these. 4. The Registrar ignored the Council's submissions in arriving at her finding as [25]-[38] were not reflected in her judgment and consequently did not afford the Council procedural fairness. Consideration 1. I agree with the Applicant that the Council has not established that it is in the interests of justice or that it is reasonable for the Court to intervene in the Registrar's decision. 2. An officer of the Court including the Registrar has a broad discretion in determining costs matters as stated in s 98 of the Civil Procedure Act 2005. While there are guiding rules and much authority about the exercise of discretion in costs matters, ultimately each matter must be determined on its own facts. The Council's assertions that the Registrar's discretion miscarried because there was clear presumptive authority in Walker v Siasat, Kiama and the other authorities extracted in her judgment at [24]-[27] binding on her is simply wrong. The circumstances of, for example, Walker v Siasa, must be considered for the context in which a particular finding is made. These submissions of the Council were predicated on statements made in Walker v Siasat inter alia that generally where there is a supervening event the parties will bear their own costs. That is not a fixed rule. 3. Supervening events come in many different shapes and sizes. While the revocation of the order by the Council can be described as a supervening event, it was the subject matter of the proceedings brought by the Applicant. The Council revoked it thereby removing the subject matter of the proceedings through its own actions. Regardless of whether the Council acted properly in doing so its actions caused the Applicant to incur unnecessary costs. The Registrar acted reasonably in considering such matters. 4. The matters referred to by the Registrar in reaching her decision have been demonstrated by the Applicant to have been matters to which both parties referred when arguing before her. No procedural unfairness appears to arise. 5. That includes the Local Court proceedings the Registrar refers to at [36]. Those proceedings were referred to in the affidavit of Mr Lacey read before the Registrar. The Local Court proceedings were not irrelevant in informing the Registrar why the Applicant commenced judicial review proceedings seeking to have the order declared invalid. 6. Events leading up to the commencement of proceedings may be highly relevant to determining costs in proceedings. The Registrar in doing so did not take into account irrelevant matters. 7. The Registrar's decision looks entirely orthodox and the Council has not justified intervention. It is unnecessary that I consider the exercise of the costs discretion afresh. Its submissions when closely scrutinised suggest that it was simply unhappy with the outcome of the Registrar's decision. That is not of course a basis for review. Costs on the review motion 1. Rule 42.14 of the Uniform Civil Procedure Rules 2005 applies if an offer is made by the plaintiff but not accepted by the defendant and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer: UCPR r 42.14(1). If r 42.14(2) applies, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim assessed on the ordinary basis up to the date on which the offer was made: UCPR r 42.14(2)(a). The plaintiff can also claim indemnity costs as from the beginning of the day following the date on which the offer was made: UCPR r 42.14(2)(b). 2. The Applicant has been successful in relation to the Council's motion. The Applicant seeks indemnity costs relying on the Calderbank letter attached to the affidavit of Mr Bilinksky. That letter does provide a basis for the award of indemnity costs in the circumstances of this case. I will make such an order and note that it dates from 12 December 2019. Orders 1. The Council's notice of motion dated 28 November 2019 is dismissed. 2. The Council must pay the Applicant's costs of the notice of motion dated 28 November 2019 including on an indemnity basis from 12 December 2019. ********** 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: 17 December 2019