Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2]

(2006) 151 LGERA 46; [2006] NSWCA 292

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Land and Environment Court
3. › Class 1 proceedings
4. › No costs rule
5. › Discretionary departure
6. › Whether resolution of question of legal capacity requires costs to follow the event
7. › Whether failure to follow established practice constitutes error of law
8. › Land and Environment Court Act 1979 (NSW), s 69(2)
9. › Land and Environment Court Rules 1996, Pt 16, r 4(2)
1. Practice and Procedure
2. › Costs
3. › Discretionary power
4. › Constraints on discretion
5. › Whether judicial guidelines may harden into rules fettering statutory discretion
6. › Whether inconsistency in exercise of discretion within a court constitutes error of law
1. Appeal
2. › Appeal on question of law only
3. › Discretionary decisions
4. › Relationship between House v The King principles and appeal limited to question of law
5. › Land and Environment Court Act 1979 (NSW), s 57

Quick Take

Part 16, Rule 4(2) of the Land and Environment Court Rules does not, by implication, require costs to follow the event in Class 1 proceedings where a question of legal capacity is determined. The distinction between 'merit review' and 'legal capacity' questions is a relevant but not determinative consideration. Authorities that elevate this distinction to the level of requiring a particular costs result (such as Gee v Port Stephens Council) unduly fetter the discretion. The 'fair and reasonable' test in r 4(2) is a lower threshold than the former 'exceptional circumstances' test under the practice direction.