Carriage v Stockland

Land and Environment Court (NSW)|2002-11-22|Before: Talbot J

Introduction 1 On 27 June 2002 Wadi Wadi Coomaditchie Aboriginal Corporation ("Wadi Wadi") made an application for interlocutory relief to restrain Stockland (Constructors) Pty Ltd ("the company") from engaging in any form of excavation or earth moving at Sandon Point, north of Wollongong ("the site") and that the company be restrained from removing any of the soil in the stockpile of earth taken from the site until certain investigations in relation to relics had been undertaken. 2 The application for interlocutory relief was dismissed and written reasons for the judgment were published by myself on 28 June 2002. At par 16 and par 17 of the judgment I made the following observations (see Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105, unreported):- 16. In the circumstances I am not satisfied that there is a serious question to be tried. The applicant's case is weak and I regard it as having no real prospect of success. The real issue appears to be a dissatisfaction with the terms of the consent and the practicalities with the operation of the conditions of the consent. These appear to be administrative issues. A practical measure would have been to raise the issues with the NPWS. This has not been done. Moreover, the issues became apparent more than a month ago and no steps were taken by the applicant to seek relief in this Court until this week.

3 Subsequently, at a further interlocutory hearing on 8 July 2002, leave was granted for Wadi Wadi to discontinue the proceedings, subject to any outstanding issue of costs. Leave was then granted for Allan Carriage to be joined as the applicant, with his consent. Moreover, leave was also granted for the applicant to rely on a further amended class 4 application filed in Court on 3:00pm on that day. 4 Over 10 and 11 July 2002 a further application for interlocutory relief was heard, together with a notice of motion by the first respondent seeking an order for security for costs. 5 The further application for interlocutory injunction was dismissed and reasons were published on 16 July 2002. A more detailed history of the matter up to that date is provided in that judgment (see Carriage v Stockland (Constructors) Pty Ltd and Another [2002] NSWLEC 117, unreported, [1 - 5]). Although the Court recognised that the first respondent would be in breach of the terms of conditions attached to consents issued pursuant to s 90 of the National Parks and Wildlife Act 1974 ("the NP&W Act")("the consents"), such breach, if proved, would not necessarily lead to the specific orders sought by the applicant. The finding was explained in par 23 of the judgment as follows:- …if the evidence in respect of the activities of the first respondent up to this point remains the same at any final hearing, there is a possibility the Court could make a declaration that there has been a technical breach of s 90 of the NP&W Act in respect of work off the development sites. Nevertheless it is only a remote and faint possibility that the Court would make orders in the terms sought, in particular the mandatory order, regulating future activity on the actual sites covered by the consents dated 30 January 2002. Furthermore, given there is no present or imminent threat of a further breach of the NP&W Act it would be inappropriate to make interlocutory orders based solely upon past activity at this time. 6 The applicant also made an application for a declaration that the consents are void or voidable on the ground of uncertainty. Again, the Court was not satisfied that there was a probability that, at the trial, the applicant would be entitled to relief on the ground that the consents are so uncertain they should be declared void for the following reasons:- 35. No specific argument was directed to consent No. 1288. Accordingly, as there are only a few of the distinguishing circumstances detailed above and applied to consent No. 1289, the applicant's case must be regarded as even weaker in respect of the Stage 1 consent.

I am unable to agree that the applicant is likely to ultimately persuade the Court that the consents can be given no meaning or no sensible or ascertainable meaning as Mr Oshlack contends (see the judgment of Lord Denning in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 at 678). The meaning of the subject consents, including the type of artefacts or relics and the identity of the relevant land, can be given an ascertainable meaning. If there are ambiguities it is the duty of the Court to resolve these. It is my preliminary view that the language used does not lead to absurd results. Although there is some prospect of ambiguity, it is not likely to be resolved by constraining the area of consent No. 1289 in the way submitted on behalf of the applicant. As I have said, no direct argument was aimed at consent No. 1288. 7 The second application for interlocutory relief was formally dismissed on 16 July 2002 and the costs in relation to the application were reserved. 8 A further judgment was delivered on 19 July 2002 in respect of the distinct issue of security for costs. Having regard to the identified inherent weakness in the applicant's case and notwithstanding the impecunious status of the applicant, for the reasons explained, the application was granted. The applicant was ordered to provide security for costs to the first respondent in the amount of $25,000 and the proceedings were stayed until security for costs were provided. 9 The company now seeks an order that Wadi Wadi pay its costs of and incidental to the conduct of the matter until 8 July 2002. Further, it seeks that the applicant, Mr Carriage, pay the company's costs of and incidental to the conduct of the matter from 8 July 2002. 10 A further notice of motion seeking that the order made in relation to security for costs on 19 July 2002 be set aside, together with an application that the proceedings be dismissed as the applicant has failed to provide the security for costs, has been stood over for hearing on 19 December 2002. In the meantime, directions have been made for the filing and service of evidence and submissions. 11 This judgment deals with the first respondent's notices of motion seeking orders for payment of costs by the respective applicants up to and after 8 July 2002. Mr Al Oshlack has appeared on behalf of the applicants, who oppose the making of the costs orders.

The argument 12 Prima facie the first respondent has been successful in having two applications for interlocutory relief dismissed and obtaining an order that the present applicant provide security for costs. It might be expected, therefore, that in the absence of unusual or exceptional circumstances, the Court would exercise its discretion in favour of the first respondent and make an order for payments of its costs as the successful party. 13 Mr Brockwell, who appears for the first respondent, relies upon the nature of the findings made by the Court which, he says, do not provide the basis for categorising the litigation as public interest litigation. The first proceedings brought by Wadi Wadi did not raise any issue of breach but rather was an attempt to revisit the merits of granting the consents on the basis of more recent information. In the second application, according to Mr Brockwell, any breach of the NP&W Act that might be proved did not justify an injunction to restrain work in the area covered by the consents. Even so, there was no threat of further breach. Finally, Mr Brockwell relies on the fact that there was no argument in respect of significant issues in respect of interpretation of legislation or its future administration. 14 In Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No. 2) [2002] NSWLEC 127, unreported, the Court had to decide whether the subject litigation in that case, which related to the same site as the present proceedings, should be regarded as public interest litigation for the purpose of exercising the Court's discretion in relation to a costs order against the unsuccessful applicant. In Kennedy I examined the various judgments delivered by judges of the High Court in Oshlack v Richmond River Shire Council (1998) 193 CLR 72 and deduced from the majority that starting from a position which favours costs orders against an unsuccessful party, if the Court finds the nature of the litigation concerns the public rather than private rights, and there are sufficient special circumstances which are not extraneous to the object of the enactment of s 69 of the Land and Environment Court Act 1979 in the context of proceedings commenced under an open standing provision, the discretion to make a costs order may be exercised having regard to those special circumstances. 15 I was not satisfied that the applicant in Kennedy had a sufficient interest to characterise the litigation as public interest litigation or to give rise to sufficient special circumstances to justify departure from the ordinary practice. By placing Mr Carriage in the same representative type of category as Mr Kennedy was in the earlier litigation, the same line of reasoning can be applied in the present case. 16 The Court accepts that Wadi Wadi and Mr Carriage were motivated by a sincere concern that Aboriginal artefacts and relics should be protected and preserved. There were no "significant issues" of the type identified by Stein J at first instance in Oshlack, as to the interpretation and future administration of the statutory provisions relating to the issue of consents under the NP&W Act. The challenge in both applications for interlocutory relief was fundamentally an attempt to revisit the merits of the grant of the consents under the NP&W Act in the guise of a legal challenge. The fact that a peripheral prospect of breach of the legislation in respect of areas not covered by the consents emerged in the litigation does not, in my opinion, give rise to "sufficient special circumstances" to justify a departure from the ordinary costs rule. 17 If the applicants had persuaded the Court that the applications for interlocutory relief could be treated as public interest litigation then it might follow that the application for security for costs might be regarded in the same light. I was not persuaded that an order for security for costs should not be made on the basis claimed, namely that the applicant should be given a full opportunity to restrain the breach alleged. Although the application for security for costs was only partially successful in that the order was made in respect of an amount significantly less than that claimed by the first respondent, nevertheless the application proved to be justified and the first respondent was successful.

Orders 18 Having regard to the whole of the circumstances, I am of the opinion that Wadi Wadi should pay the costs incurred by the first respondent up to 8 July 2002 and that after that date, Mr Carriage should be ordered to pay the first respondent's costs. 19 The Court makes the following formal orders:- (1) Wadi Wadi Coomaditchie Aboriginal Corporation is ordered to pay the costs of the first respondent in matter No. (4)0301 of 2002 up to 8 July 2002.

(2) Allan Carriage is ordered to pay the costs of the first respondent in matter No. (4)0301 of 2002 from 8 July 2002 to date, but not including costs incurred for the preparation of a hearing in respect of Order 1 and Order 2 in the applicant's notice of motion dated 9 September 2002 as amended on 1 November 2002 and the first respondent's notice of motion dated 6 September 2002.

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.

CITATION : Carriage v Stockland (Constructors) Pty Ltd and Another (Costs) [2002] NSWLEC 218 APPLICANT Allan Carriage

SECOND RESPONDENT Director-General of National Parks and Wildlife Service FILE NUMBER(S) : (4)0301 of 2002 CORAM: Talbot J KEY ISSUES: Costs :- interlocutory proceedings - whether public interest litigation LEGISLATION CITED: Land and Environment Court Act 1979 s 69 National Parks and Wildlife Act 1974 s 90 Carriage v Stockland (Constructors) Pty Ltd and Another [2002] NSWLEC 117, unreported; CASES CITED: Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No. 2) [2002] NSWLEC 127, unreported; Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105, unreported); Oshlack v Richmond River Shire Council (1998) 193 CLR 72 DATES OF HEARING: 01/11/2002 DATE OF JUDGMENT: 11/22/2002

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