Janadele Ryman v Shoalhaven City Council [1999] NSWLEC 133

Land and Environment Court of New South Wales CITATION: Janadele Ryman v Shoalhaven City Council [1999] NSWLEC 133

PARTIES APPLICANT Janadele Ryman

RESPONDENT Shoalhaven City Council

NUMBER: 40010 of 1998

CORAM: Cowdroy AJ

KEY ISSUES: Costs :- in class 4 - indemnity costs - party party costs - application made to vacate hearing refused - applicant filing notice of discontinuance - applicant seeking to withdraw notice of discontinuance after fixture - circumvention of courts orders - conduct of hearing - respondent raising inconsistent defences - orders made apportioning costs.

LEGISLATION CITED: Land & Environment Court Act 1979, s 69(2)

DATES OF HEARING: 06/09/1999

DATE OF JUDGMENT DELIVERY: 06/11/1999

APPLICANT Mr S Austin QC

SOLICITORS Back Schwartz Vaughan LEGAL REPRESENTATIVES: RESPONDENT Mr G Gleeson

SOLICITORS Morton & Harris

JUDGMENT: Background

1. On 16 April 1999 judgment was delivered in these proceedings. As the question of costs had not been argued, liberty was reserved to either party to apply for an order for costs. The court directed that in the event no such application was made, each party would pay its own costs.

2. By notice of motion filed on 23 April 1999, Shoalhaven City Council ("the council") seeks an order that the applicant ("Mrs Ryman") pay the council's costs of the proceedings on an indemnity basis or alternatively on a party-party basis. In addition, the council seeks an order that pending payment of such costs, certain class one appeals instituted by Mrs Ryman against the council be stayed.

Interlocutory applications

3. The affidavit of Mr Gleeson, solicitor for the council details the numerous applications which have been heard in the course of these proceedings. In respect of three applications namely 20 March 1988, 20 October 1998 and 6 November 1998 costs have been reserved. The history suggests Mrs Ryman found herself unable or unwilling to continue with her class 4 proceedings. On the first occasion it appears the proceedings were discontinued but revived by orders of Pearlman J. On 20 October 1998 Mrs Ryman sought an order vacating hearing dates fixed for 3, 4 November 1998. Such motion came before Justice Talbot on 23 October 1998 but it was dismissed. On 29 October 1998 following such refusal Mrs Ryman filed a notice of discontinuance. Upon her application, the court on 6 November 1998 granted permission to withdraw her discontinuance.

4. The inference can readily be drawn that the refusal of Talbot J to vacate the hearing led to the filing of the notice of discontinuance. Mrs Ryman has accordingly been successful in arranging matters to her advantage, at the cost and inconvenience of the council.

Merits

5. The information provided by Mr Gleeson's affidavit establishes that in 1980 council informed Mrs Ryman that the consent relied upon in the proceedings had lapsed. However Mrs Ryman was entitled to have her claim litigated. As indicated in the judgment delivered on 16 April 1999 the claim and the cross claim raised unusual considerations. The question is whether in view of the evidence now before the court any order for costs should be made. Pursuant to s 69(2) of the Land and Environment Court Act 1979 the court is empowered to exercise a wide discretion.

6. Indemnity costs are usually ordered in proceedings where there is no real prospect of success: Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants (1988) 81 ALR 397: Colgate Palmolive Co. v Cussons Pty Limited (1993) 46 FCR 225. There are other circumstances in which a court may grant an indemnity costs. Such order for example can be made where a judgment awards damages less than that which have already been offered, or where a party has sought to obtain a tactical advantage by unreasonably delaying an admission of liability: Rouse v Shepherd (No. 2) (1994) 35 NSWLR 277.

7. It is not possible to say that Mrs Ryman's application had no real prospect of success in view of the evidence available to her. As the judgment indicated there were complex questions arising concerning the validity of the council's consent quite apart from issues of "substantial commencement". The fact the claim of Mrs Ryman was arguable disentitles an award of indemnity costs in favour of the council.

8. The council although successful, raised issues which were unusual, namely inconsistent defences. Council argued that its own consent was invalid or alternatively that it had lapsed. Such issues required thorough investigation by the court and contributed greatly to the hearing time. It could not be said that any one issue necessarily was more important than another. Prima facie, the council would be entitled to its costs as the successful party unless its defences, albeit successful, warranted some amelioration of the application of such a rule. In my opinion the council is not entitled to an order that Mrs Ryman pay all of its costs. Some amelioration is justified in view of the defences before the court and will be reflected in the orders which are made hereunder.

9. The council also seeks costs thrown away by the absence of counsel on the afternoon of the third day of the hearing. The legal representatives ought to have ensured that alternative provision was made for representation. The failure to do so resulted in the loss of hearing time and meant that the costs of professional witnesses and legal representatives were thrown away. The council is entitled to its expenses on an indemnity basis. This is a separate matter which will be dealt with in the orders.

Orders

10. It is appropriate that orders should be made to reflect the conduct of the proceedings by each party. In respect of the filing of the notice of discontinuance on 29 October 1998 an indemnity costs order is justified. Although the council has made an application for the stay of certain class 1 proceedings instituted by Mrs Ryman pending payment of any costs order, I do not regard that such an application is appropriate. Those applications are independent of the class 4 proceedings and their resolution should not be made dependant upon payment of costs of other proceedings.

11. The courts orders are set out hereunder. For clarification Mrs Ryman will be referred to as the applicant and the council as the respondent in the orders:-

1. The applicant is to pay the respondents costs on an indemnity basis of the motion filed on 29 October 1998. 2. The applicant is to pay the respondent's costs on a party-party basis of the motions filed on 19 March 1998 and 20 October 1998. 3. The applicant is to pay the costs on an indemnity basis of the afternoon of the 3 February 1999. 4. The applicant is to pay one half of the council's costs of the hearing and of this motion.

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.