Shellharbour City Council v Minister for Local Government [2017] NSWCA 256

Shellharbour City Council v Minister for Local Government [2017] NSWCA 256

The appellant did not establish that its success on appeal was inevitable, because Ku-ring-gai Council succeeded primarily on a ground not available to the appellant and the remaining issues depended on case-specific matters concerning undisclosed KPMG documents and the delegate's reasoning. The appellant also did not show unreasonable conduct by the Minister sufficient to disturb the Land and Environment Court costs order or justify costs in this Court; the abandonment of the amalgamation was shown to be a political decision, not a concession on the merits. Accordingly, the application to set aside the trial costs order was dismissed and no order was made as to costs in this Court.

Jurisdiction
Australia
Judgment Date
12 October 2017
Procedural Posture
Civil Costs Application in Appeal Concerning Challenge to Proposed Amalgamation of Local Government Areas / Court of Appeal, on the Papers, After the Appeal Was Discontinued Because the Minister Decided Not to Proceed With the Amalgamation
Outcome
Application dismissed; no order as to costs in this Court.
Legal Topics
['costs After Discontinuance' 'costs Where Proceedings Rendered Futile' 'challenge to Validity of Proposed Amalgamation of Local Government Areas' 'unreasonable Conduct in Litigation' 'inevitable Success on Appeal']
['practice and Procedure' 'costs' 'local Government'] ['costs After Discontinuance' 'costs Where Proceedings Rendered Futile' 'challenge to Validity of Proposed Amalgamation of Local Government Areas' 'unreasonable Conduct in Litigation' 'inevitable Success on Appeal']

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Procedural Posture

Civil Costs Application in Appeal Concerning Challenge to Proposed Amalgamation of Local Government Areas / Court of Appeal, on the Papers, After the Appeal Was Discontinued Because the Minister Decided Not to Proceed With the Amalgamation

Legal Issues

  1. 1 ["Whether the appellant's application to set aside the Land and Environment Court costs order should be granted after the appeal was discontinued." "Whether the Minister's abandonment of the proposed amalgamation amounted to a capitulation justifying costs in favour of the appellant." "Whether the appellant's success on appeal was inevitable or almost certain." "Whether the Minister's conduct was unreasonable so as to justify ordering the Minister to pay costs of the trial or appeal."]

Ratio Decidendi

The appellant did not establish that its success on appeal was inevitable, because Ku-ring-gai Council succeeded primarily on a ground not available to the appellant and the remaining issues depended on case-specific matters concerning undisclosed KPMG documents and the delegate's reasoning. The appellant also did not show unreasonable conduct by the Minister sufficient to disturb the Land and Environment Court costs order or justify costs in this Court; the abandonment of the amalgamation was shown to be a political decision, not a concession on the merits. Accordingly, the application to set aside the trial costs order was dismissed and no order was made as to costs in this Court.

Court Disposition

Application dismissed; no order as to costs in this Court.

Orders

  • ["Dismiss the appellant's application to set aside order (2) made in the Land and Environment Court on 20 September 2016, namely that the applicant pay the respondents' costs in that Court." 'Make no order as to the costs of the parties in this Court.']