Carriage v Stockland

On 18 November 2002 I also heard a Notice of Motion brought by the First Respondent seeking security for costs from the Applicant. A separate judgment on this issue was also handed down on 20 November 2002 (Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217; (2002) 123 LGERA 214). Security for costs was refused.

On 3 February 2003 the Applicant filed a Notice of Motion seeking urgent interlocutory relief in relation to part of Lot 235, the second application by the Applicant for an interlocutory injunction in relation to that land. On 7 February 2003 the matter came before me as Duty Judge. I granted an adjournment to the Applicant (who was represented by his agent Dr Jamieson on that occasion) and set the interlocutory injunction for hearing before myself on 19 and 21 February 2003. I also refused a strike out application made by the First Respondent in relation to the second application for an interlocutory injunction. I ordered that the Applicant pay the First Respondent's costs of the preparation for and hearing on 7 February 2003 and granted the First Respondent leave to have those costs assessed immediately.

On 19 and 21 February 2003 I heard the Applicant's second application for an interlocutory injunction. The Applicant was represented at the hearing by his agent, Mr Oshlack. On 24 February 2003 I delivered an oral judgment in which I refused the Applicant's claim for interlocutory relief (now published as Carriage v Stockland (Constructors) Pty Ltd & Ors [No 3] [2003] NSWLEC 86). Costs were reserved. The First Respondent seeks costs in its Notice of Motion now before me in relation to the second application for an interlocutory injunction.

The Applicant has also brought Class 4 proceedings in matter no (4)0301 of 2002 against the First and Second Respondents in these proceedings in relation to the First Respondent's land at Sandon Point (those proceedings were originally commenced by Wadi Wadi Coomaditchi Aboriginal Corporation, but Mr Carriage was later substituted as the Applicant). Those proceedings have, to date, been presided over by Talbot J and his Honour has published a number of judgments in that matter: see Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105, Carriage v Stockland (Constructors) Pty Ltd and Another [2002] NSWLEC 117, Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121 and Carriage v Stockland (Constructors) Pty Ltd and Another (Costs) [2002] NSWLEC 218. The background to matter no (4)0301 of 2002 can be found in the last judgment at par 1 - 9.

First Respondent's submissions Should costs be awarded? 9. The First Respondent argued that it should be awarded its costs. An interlocutory injunction is discrete from the final hearing. When an interlocutory injunction is sought and the Applicant is unsuccessful, the person who is put to the expense of defending the interlocutory injunction should be compensated. Even if an Applicant is successful at the final hearing it is still proper for a respondent to get its costs in relation to an unsuccessful application for an interlocutory injunction. The First Respondent did not refer to any specific case law to support these submissions.

10. On 19 and 21 February 2003 the Court heard a substantial application for a second attempt by the Applicant to obtain an interlocutory injunction in relation to part of Lot 235 where the order sought was essentially the same as that sought in the first application (which was refused in part on 20 November 2002). The First Respondent retained a solicitor, junior counsel and senior counsel for the hearing on 19 and 21 February 2003. The First Respondent referred to my judgment dated 24 February 2003 (Carriage [No 3]) where I stated that the Applicant's second application did not raise a serious question to be tried or prima facie case to be answered, there was no new evidence in relation to environmental harm, 98% of the bulk earthworks were complete, the only works left included tilling, seeding, grass regeneration and remediation of the SCESFC, the balance of convenience favoured the First Respondent, and the Applicant presented no relevant new evidence. I refused the interlocutory injunction.

11. The evidence the Applicant relied on for the second application for an interlocutory injunction did not show there was an immediate threat of environmental harm. The Applicant's agent said that this was because the work had already been done. This highlights the futility of bringing the application for a second interlocutory injunction. Furthermore, the affidavits relied on by the Applicant were not probative. They simply demonstrated that earthworks were going on and that aboriginal artefacts had been seen. This was to be expected as the Applicant was unsuccessful in the application for the first interlocutory injunction in relation to Lot 235 in November 2002. While the affidavits were newly generated, they did not demonstrate additional matters in relation to environmental harm and they did not contain new or pertinent evidence in relation to the application for an interlocutory injunction. The Applicant was misconceived in the threshold that had to be met.

12. The First Respondent submitted the Applicant was essentially seeking to retry the decision given in relation to the first interlocutory application, which was only partially successful. Accordingly, the threshold for the First Respondent to get its costs was lower on this occasion, and correspondingly the threshold of the Applicant to resist costs was higher. Is this public interest litigation and do special circumstances exist and if so does that suggest the First Respondent should not get costs?
13. In anticipation of the Applicant's agent's argument that the litigation has been brought in the public interest and that this suggests the First Respondent should not get its costs, the First Respondent referred the Court to three cases: Oshlack v Richmond River Council (1998) 193 CLR 72; Carriage v Stockland (Constructors) Pty Ltd and Another (Costs); and 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.

14. In Kennedy the applicant's counsel argued that costs should not be awarded because the proceedings were characterised as public interest litigation, the applicant did not commence the proceedings for the purpose of personal gain and there was an arguable case. At par 5 of his judgment Talbot J referred to the summary in the joint judgment of Gaudron and Gummow JJ in Oshlack of the relevant principles taken into account by Stein J at first instance.

15. At par 12 of his Honour's judgment in Kennedy Talbot J stated: The common ground I deduce from the majority judgments in Oshlack is that, starting from a position which favours costs orders against an unsuccessful party, if the Court finds the nature of the litigation concerns public rather that private rights and there are sufficient special circumstances which are not extraneous to the object of the enactment of s 69 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.
16. At par 15 his Honour stated: Mr Kennedy was a representative of a group who, as Aboriginal persons, had a particular interest in the artefacts the subjects of the consents. That in itself is not sufficient, in my opinion, to characterise the litigation as public interest litigation or to give rise to sufficient special circumstances to justify a departure from the ordinary practice as to the making of a costs order in favour of a successful party…

Talbot J awarded costs against Mr Kennedy in that case.

17. In Carriage v Stockland (Constructors) Pty Ltd and Another (Costs) Talbot J applied the same principles he identified in Kennedy to an application for costs sought on an interlocutory injunction and concluded that the usual costs rule should apply. The First Respondent submitted that these cases should apply to this case also and that in this case there is no justification for departing from the usual costs rule.

Should costs be awarded on an indemnity basis? 18. Section 69 of the Land and Environment Court Act 1979 (the Court Act) gives the Court power to award costs on an indemnity basis. The First Respondent submitted the relevant principles were laid down by Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. His Honour stated at 401: … it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. 19. The First Respondent submitted this case has been consistently applied in this Court as authoritative in its approach to the award of indemnity costs. In this case there was no evidence at all to support the second application for an interlocutory injunction. Furthermore, 98% of the bulk earthworks were complete, the only remaining work being tilling, seeding and turfing in accordance with the conditions of consent. The Respondent submitted this case is an appropriate case for an award of indemnity costs. The application was misconceived and should not have been brought.

Should costs be assessed immediately, i.e. before the final hearing? 20. The First Respondent submitted that costs, if awarded, should be assessed immediately. The First Respondent submitted it has been put to a total of seven days of costs for legal representation this year alone in this matter. The Applicant continually brings the First Respondent back to the Court to seek to retry earlier orders made. This is a second attempt to obtain an interlocutory injunction in less than three months. This application was misconceived and should never have been brought. The Applicant has also sought to reopen costs already awarded and in other proceedings (matter no (4)0301 of 2002) to set aside orders staying proceedings. There is a limit to what the Applicant should be allowed to revisit. An order that costs be assessed immediately will enable the First Respondent to takes steps that may deter the Applicant from putting the First Respondent to further unwarranted expense.

21. The Applicant is impecunious and although he gives an undertaking as to damages that undertaking is worthless as he has no assets. A person who has nothing to lose financially cannot take advantage of the open standing provisions. The Court needs to send a signal (by awarding indemnity costs and ordering immediate assessment) to the Applicant that he, through his agent, cannot continually return to Court putting the First Respondent to expense where there is no serious question to be tried and no immediate environmental harm.

Applicant's submissions 22. The Applicant's agent, Mr Oshlack, submitted that costs should be reserved until after the final hearing. The Applicant submitted that if the First Respondent believes the Applicant is committing an abuse of process it could bring a strike out motion, have the Applicant adjudged a vexatious litigant or seek security for costs (it has already attempted the latter in these proceedings). However, this is not a reason to give a costs order at this stage.

The Applicant's agent submitted from the bar table that the Applicant has a deep feeling of sadness in relation to aboriginal culture which is being destroyed. The Applicant has nothing personally to gain from the litigation. There is no question about the motivation or personal integrity of the Applicant, which can be seen from the judgments of Talbot J (unspecified) and the Supreme Court Equity Division decision in Stockland (Constructors) Pty Ltd v Allan Richard Carriage (2002) 123 LGERA 289. The Sandon Point development is controversial. Since November it has been declared State Significant Development and a Commission of Inquiry into the area has begun. Dr Hiscock's report, relied on in the first interlocutory injunction application, states that the site is one of the most significant aboriginal sites in Australia. This demonstrates that the public interest goes beyond the Applicant.

The Applicant's agent submitted that the fill on the land is over a significant aboriginal site and the artefacts are old and irreparable. Mr Kennedy's affidavit confirms that the fill contains significant aboriginal artefacts. The evidentiary bar has been raised as the Applicant has demonstrated that there is desecration of aboriginal relics and that the fill has been illegally dumped for future development.

The Court is yet to determine the question of law in issue. The Applicant has brought a case and the First Respondent's only defence is a construction certificate, the validity of which was unable to be questioned by the Applicant at the interlocutory hearing. The issues in the case have not yet been finally determined and it would be unjust to award costs in those circumstances.

The Applicant's agent submitted that although applications for interlocutory injunctions may be lost an applicant may still go on to win the case. Costs should be dealt with at the final stage of proceedings. It would be unjust if the Applicant's case was brought undone because of an award of costs at this stage. Costs were reserved in the Kennedy case at the interlocutory stage and the Applicant submits that is the usual procedure in Class 4 matters which are complex and controversial.

The Applicant's agent submitted that the Applicant fulfils the requirements laid down by the High Court in Oshlack in relation to the public interest. He has nothing personal to gain. However, as the law is yet to be determined, it would be inappropriate to award costs at this stage and costs should be reserved.

Finding 28. Cases such as Oshlack and Kennedy have dealt with costs after the final hearing of a matter. Should the same considerations apply in relation to interlocutory injunction costs matters? My view is that, where a matter is at the interlocutory stage such that it has not been fully litigated so that the extent of the legal and factual issues are not finally settled or determined, a prudent order at an early stage of proceedings, even where an interlocutory application is unsuccessful, is that costs be reserved until the final outcome of a matter has been determined.

29. Of course this is not a blanket "rule" in relation to costs on interlocutory matters. Each case must be decided on its own circumstances. I note this is not the approach taken by Talbot J in Carriage v Stockland (Constructors) Pty Ltd & Anor (Costs) where his Honour awarded costs in favour of the First Respondent in relation to interlocutory proceedings. In the course of his judgment, Talbot J considered whether the proceedings were public interest and whether special circumstances existed so that he did effectively consider the same matters as would be considered if the costs determination was for a final hearing. It is clear that his Honour did consider the matters were sufficiently determined before him during the interlocutory proceedings to enable their adequate consideration for costs purposes.

30. After a final resolution of a matter, in order for the "usual" costs rule not to apply, special circumstances must be found to exist which suggest that it ought not apply. This may include that the litigation is public interest in nature and that additional special circumstances exist. The difficulty in applying the "usual" rule, or finding special circumstances which suggest it ought not apply, at the interlocutory stage is that there is not necessarily a thorough consideration of the issues to enable a final determination of those questions. While the Applicant has argued the same issue unsuccessfully before me on two occasions, that does not deal with the entirety of the Applicant's case. Further, the fact that the Applicant was unsuccessful on the second interlocutory injunction application does not suggest a costs order ought be granted at this stage of the proceedings to the First Respondent in the circumstances of this matter. The matters argued by the Applicant in its second interlocutory injunction application have not been finally determined by a judge of this Court. Since that application the Applicant has retained a barrister and the final hearing may yet yield a different outcome on the issue giving rise to this costs application.

31. I intend to adopt the Applicant's agent's submissions to the effect that costs should be reserved until the final outcome of costs in these proceedings is determined. This will enable costs to be considered at the end of the case when the final outcome has been decided. The First Respondent's application for costs is refused at this stage or, more accurately, postponed until the final outcome of costs in these proceedings is determined. Accordingly, I do not need to consider now the application for indemnity costs or whether costs should be payable immediately. I ordered that costs be reserved at the time I gave my judgment in Carriage (No 2). It is unnecessary that I repeat that order.

Orders 32. The Court makes the following orders:

1. The First Respondent's Notice of Motion filed on 24 February 2003 is stood over until the final outcome of costs in these proceedings is determined.
2. The exhibits may be returned.

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