Andrew Donnelly v Delta Gold Pty Limited and Ors.

Andrew Donnelly v Delta Gold Pty Limited and Ors. - [2002] NSWLEC 44 - NSWLEC 2001 case summary — Zoe

[20]

In that case, a majority of the High Court, reversing the decision of the Court of Appeal and upholding the decision of the trial judge (Stein J when a judge of this Court) held that the following considerations (which Stein J had taken into account) were relevant to the exercise of the statutory costs power conferred upon this Court by the LEC Act, s 69(2) - (i) characterising the nature of the litigation as being concerned with public rights rather than private rights; (ii) finding that the applicant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law….with nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna"; (iii) the fact that there was a significant number of members of the public sharing the applicant's concern in the litigation; and (iv) the fact that the basis for challenge was arguable and had led to a judicial decision resolving significant issues in the interpretation of new laws protecting endangered fauna: see at p 91 in the joint judgment of Gaudron and Gummow JJ and at pp 123 and 124 per Kirby J who there said: The Council argued that the costs discretion had miscarried because of the reference to an indeterminate class of public interest litigation. It was submitted that this concept introduced a nebulous consideration of a social, economic or political kind. It was unhelpful as a criterion authorising departure from the ordinary compensatory principle. I agree that it is difficult to define with precision what is meant by public interest litigation. Stein J acknowledged this. However, the series of cases to which his Honour referred illustrates, clearly enough, that in this country, as well as in England (225), New Zealand (226), Canada (227) and elsewhere (228) a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration (229). Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant. (225) Donald Campbell & Co v Pollak [1927] AC 732 at 811-812. (226) Ratepayers and Residents Action Association Inc v Auckland city Council [1986] (227) Mahar v Rogers Cablesystems Ltd (1995) 25 OR (3d) 690 at 703-704; Reese v Alberta [1993] 1 WWR 450. (228) /Southeast Alaska Conservation council Inc v State of Alaska (1983) 665 P 2d 544 at 553-554. (229) R v Archbishop of Canterbury [1902] 2 KB 503 at 572; Latoudis v Casey (1990) 170 CLR 534 at 550, citing Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92.

[24]

However, since those decisions depend upon their own facts, for present purposes, it is, I think more instructive to refer to only one such decision of this Court, namely the decision of the Chief Judge in Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1998) 105 LGERA 354 because it helpfully enumerates the following principles relevant to the exercise of the costs discretion conferred by the LEC Act, s 69(2) which the Chief Judge deduced from Oshlack and other authorities - (1) The discretion conferred upon the Court by s 69(2) is wide and unconfined: Oshlack at 180, 205. (2) It is, however, a discretion which must be exercised judicially, that is to say, not arbitrarily and not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation: Oshlack at 180; Latoudis v Casey (1990) 170 CLR 534 at 557; Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGRA 381 at 384. (3) Nonetheless, principles have been laid down to guide the exercise of such discretion in the interests of consistency of approach: Latoudis v Casey at 541. (4) One such principle is that, ordinarily, costs follow the event; that is, costs are awarded to the successful party as compensation for the costs incurred: Latoudis v Casey at 567; Oshlack at 213. (5) However, the principle that costs follow the event is not a fixed or absolute rule: Oshlack at 186, 213. (6) This Court, in exercise of its discretion under s 69(2), must take into account all relevant factors, which in proceedings which have been brought pursuant to the open standing provision contained in s 123 of the EPA Act, may include factors which have a public interest nature: Oshlack at 187. (7) The consideration of all relevant factors may lead to a finding that special circumstances exist for departing from the general rule that costs follow the event and may lead to a consequent determination that there be no order as to costs (as occurred in Oshlack at first instance: see Oshlack v Richmond River Council (1994) 82 LGERA 236. (8) Public interest factors are not, however, determinative factors; they are merely relevant factors to consider. In other words, factors based on the public interest nature of the litigation do not give the applicant automatic immunity from a costs order: Oshlack at 214. (9) Nor is it necessary that the Court go through a process of characterisation of the litigation as public interest litigation. What is required is for the Court to consider all relevant factors, including factors of a public interest nature: Oshlack at 182. (10) A shopping list approach should also be avoided. The factors which Stein J (as he then was) took into account in Oshlack at first instance should not be elevated to a fixed list, each item of which the Court, in a particular application for costs, merely ticks with approval or rejects with a cross. Such a mechanically rigid approach is not appropriate: Oshlack at 213.

[29]

Considerations (i) and (ii) can be considered in tandem. Relevant to each of them is the affidavit sworn by the Applicant on 8 November 2001 in which he states: 1. I am the son of Andy Donnelly whose father was Richard Donnelly the song man of the Bandjalung aboriginal people and custodian of the knowledge of his djuberul from his grandfather Wulul Wulul. 2. The Timbarra Plateau is a place of great ceremonial significance to the Bandjalung people. 3. I was born and raised in Bayugil Community. I spent my growing up years with my uncles, aunts, cousins and grandparents hunting, fishing, camping, travelling, making traditional implements such as cutting bark and spears on land in and around the Timbarra Plateau. It was through this upbringing with my extended family that knowledge of our lore and my obligations was taught to my generation by our Elders. I believe that the land and the lore belonging to us Bandjalung people are like parts of our bodies and have been since time began. 4. The Timbarra Plateau is a holy, sacred and special place for my people, the Bandjalung people. It has been the site of sacred ceremonies where laws were passed down from one generation to the next for centuries. 5. My custodial obligations passed to me through my grandfather include the protection of sacred sites, looking after ceremonies and other secret business. 6. It is my custodial obligation as a traditional owner to make sure that the sacred areas, the animals, land, water, plants, rocks and mountains are looked after properly and respected. It is these things which are the wealth of future generations. The rare medicinal plants and pure water in the Timbarra Plateau area are two of the resources which needed to be preserved which belong to our people. 7. It is also my custodial obligation to protect the cultural heritage and environment of the Timbarra Plateau area for the Australian community as a whole. The Clarence River of which the Timbarra Plateau is a part is a vital ecosystem relied on by the community living along its length for livelihood, cultural enrichment and recreation. 8. I have worked for many years to save the Sacred Timbarra Plateau from desecration. 9. I thought that in my role as a traditional custodian I was obliged to bring these proceedings. This is because I could not ignore the actions of the respondents in relation to mining activity that I believe was harmful to the Clarence River.

At a glance

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Judgment (67 paragraphs)

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Cases Cited (6)

Cited By (1)