Carriage v Stockland

4. The matters before the Court in the two notices of motion are intertwined to a degree. The First Respondent stated that its security for costs application was the most important part of its application, and was the main subject of its submissions. Further, the First Respondent submitted, if I grant the security for costs application there will be no need to consider whether the pleadings ought to be amended. In any event, both notices of motion were heard together. I will deal firstly, however, with the issue of security for costs.

5. In relation to evidence, there were three affidavits of Mr Robert Wilcher, the First Respondent's solicitor, dated 5 May 2003, 3 June 2003 and 19 June 2003 relied on. An affidavit sworn by Mr Hedge dated 15 November 2002, relied on by the First Respondent in the first interlocutory application made by the Applicant, was also referred to briefly. Three affidavits of Ms Susan Hill, the solicitor for the Applicant, dated 12 June 2003, 18 June 2003 and 19 June 2003 were relied on by the Applicant.

Security for costs 6. Dealing first with the security for costs matter, this issue occupied the greatest amount of hearing time before me. I will briefly summarise the submissions put by both the First Respondent and the Applicant.

First Respondent's submissions 7. The First Respondent's counsel argued the Applicant's case has poor prospects of success. The First Respondent argued that essentially the work on Lot 235 has been completed. This was the subject of two unsuccessful applications for interlocutory relief by the Applicant in relation to which I have already given judgment finding there is no serious question to be tried in relation to that site. The First Respondent argues that this aspect of the proceedings therefore serves no purpose and is bound to fail on the legal case.

The First Respondent argued in relation to the AIR land that although I have given an interlocutory injunction in relation to that land on the Applicant's interlocutory application, the case the Applicant is arguing is weak for the reasons stated in the First Respondent's written submissions. This argument was put to support the security for costs application and also the application by the First Respondent to have the temporary injunction on the AIR land lifted. The First Respondent also argued that delay on the part of the Applicant in prosecuting the proceedings supported the discharge of the interlocutory injunction.

This argument seemed to me to be an attempt to have a rehearing of the initial interlocutory application restraining activity on the AIR land. Apart from the submission put by the First Respondent's counsel from the bar table there was no evidence tendered in support of the submissions that the Applicant's case is weak. I do not accept the Applicant has delayed in prosecuting these proceedings. I also do not accept at this stage there is any basis offered to lift the interlocutory injunction in relation to the AIR land.

The First Respondent also sought to rely on the fact that a number of other proceedings have been taken in this Court, and also one matter in the Supreme Court, by Mr Carriage and others concerning the same land at Sandon Point. These proceedings were listed in the affidavit of Mr Wilcher sworn 5 May 2003 and I refer the parties to that affidavit.

Particular reliance was placed on the numerous decisions of Talbot J in matter no (4)0301 of 2002 also called Carriage v Stockland (Constructors) Pty Ltd and Anor which concerns land adjoining the land the subject of this application. That land also belongs to the First Respondent in the area known as Sandon Point, and is also part of the subdivision being undertaken there by the First Respondent.

The volume of these proceedings was said to demonstrate a cavalier approach to litigation by the Applicant who, being impecunious, was unconcerned about the risk of an adverse costs order in the event that he loses. It was submitted, therefore, it was unjust not to order security for costs in favour of the First Respondent.

It was also argued by the First Respondent that proceedings could have been commenced by other entities such as the Wadi Wadi Coomaditchi Aboriginal Corporation and the KEJ Aboriginal Corporation. It was pointed out that Talbot J ordered security for costs against Mr Carriage in matter no (4)0301 of 2002, partly on the basis that two other corporations had been a party or the subject of a motion to be joined as a party (see Carriage v Stockland Constructors Pty Limited and Anor (No 2) [2002] NSWLEC 121 at par 3). The Wadi Wadi Coomaditchi Aboriginal Corporation had been an Applicant and discontinued as Applicant in the proceedings before Talbot J when Mr Carriage was substituted as the Applicant.

It was submitted that because Talbot J ordered security for costs of $25,000 in those proceedings (matter no (4)0301 of 2002), Carriage v Stockland Constructors (No 2), which related to essentially the same land, the present proceedings had been commenced by the Applicant. It was said the reasoning of Talbot J in his judgment has direct application to the circumstances of this case.

It was also submitted that Wollongong City Council could have commenced proceedings and this was supported by the minutes of meetings of the Council during 2003 in which it agreed to contribute $35,000 towards the Applicant's current proceedings. Particular reliance was placed on the fact that the Council supports the Applicant's claim, as demonstrated in numerous minutes. This was said by the First Respondent's counsel to demonstrate that the Council could and may well commence proceedings of its own. I note that the most recent minute of the Council dated 26 May 2003 states that the Council cannot provide any financial support to the Applicant for these proceedings or any other.

The basis for these arguments by the First Respondent concerning other possible Applicants was said to be supported by the majority of the Court of Appeal in the decision of Melville v Craig Nowlan & Associates Pty Limited (2001) 54 NSWLR 82. The First Respondent relied on statements by Heydon JA that the making of security for costs against an impecunious applicant being a natural person under s 69(3) of the Land and Environment Court Act 1979 (the Court Act) does not deprive that person of any fundamental right in the context of s 123 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). These open standing provisions, that is s 123 of the EP&A Act, mean the proceedings are not the applicant's to prosecute. Any number of natural persons remain who are capable of enforcing the proceedings. Where there are other possible litigants, in this case namely the Council and possibly two corporate bodies which can commence proceedings, there is no impediment overall to the litigation proceeding. It was said that Young J also supported this approach to s 123 in his judgment at [139] - [147] of Melville.

The First Respondent submitted that the Applicant had the onus of showing that there was no other possible applicant if he was to successfully resist a security for costs order against him when impecunious. This submission was also said to be consistent with the majority view in Melville. I further note there were other parts of the majority judgment in Melville relied on by the First Respondent to the effect that the fact that if security for costs are awarded so that the Applicant would not be able to prosecute the proceedings does not require the discretion whether to order security be exercised in the Applicant's favour where the proceedings are brought under s 123 of the EP&A Act. Further, it was said that impecuniosity is a relevant factor pointing in favour of the grant of an order for security for costs where proceedings are commenced under s 123 and I was referred particularly to the decision of Heydon JA in Melville at [127]. Further, I should note that, essentially in reply to the Applicant's submissions which I will come to, the First Respondent submitted that the Applicant, Mr Carriage, did not have a special interest such as was recognised in the decision of Onus v Alcoa of Australia Limited (1982) 149 CLR 27 so that he could not satisfy the common law interest test for standing. This was apparently because Aboriginal relics are the property of the Crown in New South Wales.

Applicant's submissions 18. The Applicant's counsel submitted that in Melville it was held by all the judges that s 69(3) of the Court Act confers a broad discretion on the Court to award security for costs against an impecunious person, including that the Court does have power to make such an order for security for costs against an impecunious person.

It was otherwise argued the Court of Appeal in Melville reexercised a discretion having found errors at first instance and took various matters into account. Some of the matters taken into account by Heydon JA and Young J as relevant were the fact that the Applicant had no personal interest at stake as she lived some six kilometres from the subject development and further that the wide nature of standing under s 123 of the EP&A Act meant that the proceeding would not necessarily be stultified if the order was made, as another person could bring similar proceedings.

There is nothing in the majority decision of the Court of Appeal in Melville in terms of how it exercised its discretion which is binding on me according to the Applicant's counsel. Broad discretion means that it must be exercised on a case-by-case basis having regard to all relevant factors.

The matters referred to in the decision of KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197 - 8 are relevant, albeit that case dealt with whether security for costs ought to be awarded against a company. The Applicant referred to findings of fact I made at par 9 - 13 and 16 in my decision of Carriage No 2 to support his argument that the circumstances suggest that a security for costs order ought not be made in this matter before me now.

In relation to the First Respondent's submissions concerning resolutions about the case in the minutes of the Wollongong City Council, it is clear on close examination of these that the approval of any funding of the Applicant was conditional and limited and that only $10,000 was actually related to these proceedings. In any event, on 26 May 2003 the Council resolved that it not provide financial assistance for legal proceedings to Mr Carriage. There is no basis on which the Court can conclude that the Council is likely to provide funds to Mr Carriage in the foreseeable future as financial assistance for legal proceedings.

An equally plausible explanation for why proceedings against the Council were discontinued by the Applicant were that orders were never sought against the Council and there was no need for it to be a party in these proceedings.

It was further submitted the Applicant does have a special interest, unlike the Applicant in Melville. In particular the Applicant asserts that he personally has been denied procedural fairness as one of the grounds in the Class 4 application challenging the issue of a s 90 permit under the National Parks and Wildlife Act 1974.

The fact that there may be other potential litigants able to fill Mr Carriage's position as Applicant if security for costs were ordered is not persuasive in relation to claims which arise as a result of his personal circumstances. Furthermore, other parties the First Respondent referred to, namely the Wadi Wadi Coomaditchi Aboriginal Corporation and the KEJ Corporation, were potential Applicants in other proceedings, not these proceedings, and those matters were irrelevant to the matters before me.

Finding on security for costs 26. Section 69(3) of the Court Act provides: [t]he Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party. Section 69(4) and (5) make provision for the form and amount of security and variation of the time at which or the manner or form in which the security is to be given. If security is not given in accordance with an order the Court may order the proceedings be dismissed: s 69(6).

Melville, to which I have already referred, confirms that the power to award security for costs under s 69(3) of the Court Act is not to be narrowly construed. I have already given one decision refusing a security for costs application by the First Respondent, Carriage (No 2). In that decision at par 6 and 7 I also referred to relevant considerations in security for costs applications identified by Beazley JA in KP Cable Investments Pty Ltd v Meltglow Pty Ltd which I repeat here.

As the Applicant's counsel pointed out that case did concern a corporation rather than a natural person but I consider the case is a useful guide in this case also. I do not accept the First Respondent's submission that this case has limited relevance in the context of applications under s 123 of the EP&A Act because of the majority judgment in Melville. I do not consider there has been any basis put forward by the First Respondent which is essentially new or different to the circumstances before me on the previous application for security of costs suggesting I should now award security of costs.

Although the Applicant has unsuccessfully sought a further interlocutory injunction in relation to the area known as Lot 235, which was refused by me on 24 February 2003, in the overall context of these proceedings my findings at par 9, 10, 11, 12, 13 and 16 of Carriage No 2, also as set out in par 27 of the Applicant's written submissions, still apply. Remediation orders are sought so that in the event the Applicant were successful in relation to Lot 235, where the First Respondent states all work has been completed, the Applicant may be successful in having such orders made. Several of the matters which the Applicant seeks to litigate have not been dealt with yet by this Court.

Furthermore, I do not accept that because the Applicant's claim has been unsuccessful on one aspect on two occasions in interlocutory applications before me that it is patently clear, as the First Respondent argued, that the entirety of the Applicant's claim is weak. At this stage of the proceedings it is unknown what the prospects of success are in relation to all the grounds raised by the Applicant's Class 4 application, as I have simply not heard argument or evidence on these and some grounds were not allowed to be raised on the previous interlocutory application because they were raised so late by the Applicant's then agent. I do not consider these proceedings are otiose.

The evidence of the Applicant's solicitor is that these proceedings will be stayed if a substantial security for costs order is made. It was the submission of the Applicant's counsel that even if a modest security for costs order were made this would still stay the proceedings.

I consider that other proceedings commenced by Mr Carriage are irrelevant to considerations before me on security for costs in this matter. Proceedings taken by other parties in relation to the same land in this Court are also irrelevant in my view. There has been no suggestion by the First Respondent that there are issues of res judicata in relation to any of the legal issues raised in these proceedings. The fact the same general area of land has been involved in several different proceedings is not material at this stage to whether this Applicant should be required to pay a security for costs order.

The submissions put by the First Respondent concerning other possible Applicants was speculative in that the submissions as to their motives and behaviour suggested by the First Respondent was not supported by evidence in any way. This material is also not relevant in my view. There has been nothing in the First Respondent's submissions in relation to the majority judgment in Melville which causes me to consider that I should exercise my discretion to grant security for costs in this matter.

I have to say that I do not agree with those parts of the majority decision in the Court of Appeal in Melville which the First Respondent's counsel has particularly relied on. Statements by Heydon JA, particularly par 102, 107 and 124 and Young J at par 139 to 146 concerning security for costs orders against applicants pursuing litigation under s 123 of the EP&A Act suggest that there is no loss of any personal right because there are other potential litigants if a security for costs order is made against an impecunious person and then consequently proceedings are barred in relation to that person. In my opinion the minority decision of Stein JA in Melville is the appropriate approach to the consideration of open standing provisions in this Court (particularly par 2 to 13 of his Honour's judgment) in this context.

I consider the majority judgments are wrong on this issue because these findings essentially undercut the open standing provisions which the New South Wales Parliament has conferred in s 123 of the EP&A Act by effectively imposing a requirement on those seeking to use that provision to demonstrate, in order to resist a security for costs application, that they have a special interest which would justify not awarding security for costs because that may result in the litigation being barred. This ultimately leads, in my view, to a narrowing of the right under s 123 of the EP&A Act to take action regardless of the nature of the Applicant's interest in the subject matter of the proceedings because that right could be effectively limited by interlocutory processes before a final hearing.

In my earlier decision on security for costs, that is in Carriage No 2, I stated at par 8 that I did not consider that I was bound by the majority decision in Melville as the discretion I exercised under s 69(3) of the Court Act is broad and the only limitation on me is that I exercise that discretion judicially. As I have already stated, I see no reason to depart from my earlier decision not to award security for costs in this matter as there are essentially no new matters put to me which suggest to me that I should.

If I am wrong and I am bound by the majority decision in Melville the application of the principle of stare decisis means that I must follow that decision if the facts before me are identical. I do not consider the facts before me are identical. The Applicant in Melville lived some distance from the area of land the subject of the proceedings and she did not otherwise have any particular interest in the land the subject of that case. I made findings in my earlier judgment (Carriage No 2) in relation to Mr Carriage and his interest in this litigation at par 9, 10 and 15. There is now also the claim for procedural fairness before the Court. I consider he does have a special interest such that if an award of security for costs was made which, even if modest, will effectively halt this litigation he will be deprived of a fundamental right. I consider this to be a significant factor to weigh up in deciding whether in this case security for costs will be awarded in favour of the First Respondent and I consider it should not be.

I also note that Heydon JA in Melville refers at par 129 to a decision of Priestley JA in Brown v Environment Protection Authority (NSWCA, unreported, 1 April 1993, Priestley JA) in which his Honour considered "the possible effects on the parties of the making or refusal of an order for security" and considered the circumstances of the applicant for security for costs as part of his decision. I note that Priestley JA took into account the fact that if a large public company, which was respondent to the appeal and the applicant for security for costs, failed to obtain an order for security for costs in the amount of $15,000 that failure was not of great importance to it. In this case the First Respondent is a large publicly listed company with substantial financial assets. No particular hardship or prejudice to the First Respondent has been alleged apart from having to participate as a party in this litigation for which costs are unlikely to be recovered if the Applicant is unsuccessful given that he is impecunious. There is no suggestion the First Respondent will suffer any financial hardship if it does not recover its costs.

Accordingly there is nothing in the First Respondent's situation which causes me to reconsider my decision not to award security for costs in the matter. Accordingly prayer 4 of the First Respondent's notice of motion before me is denied. Dismissal for want of prosecution and whether the injunction on the AIR land should be lifted 40. The First Respondent's counsel argued, albeit briefly, that the Applicant's claim should be dismissed for want of prosecution. The Court has power under Pt 12 r 2 of the Land and Environment Court Rules 1996 to dismiss proceedings for want of prosecution in certain circumstances. I accept the submissions of the Applicant that the conditions precedent to the making of such an order have not been satisfied in the circumstances of this case.

41. Those preconditions are that firstly, the Applicant does not within a reasonable time take any step necessary to bring the proceedings to a hearing or that the Applicant unreasonably takes a step to avoid the proceedings being brought to a hearing. Secondly, the Court is satisfied there is no good reason for the failure of the Applicant to prosecute the proceedings.

42. While there may have been delay in complying with some of the Court's directions, in the overall context of the history of these proceedings I do not consider the Applicant's conduct to date, particularly as the Applicant was not legally represented until recently, satisfied any of the conditions precedent set out above. I do not consider this matter should be dismissed at this point for want of prosecution.

43. Accordingly prayers 1 and 3 in the First Respondent's notice of motion are denied.

44. For the reasons I have already stated I do not think the injunction should be lifted and as the proceedings are not being dismissed, there is no other basis to lift the injunction made on 20 November 2002 in relation to the AIR land. Accordingly prayer 2 of the First Respondent's notice of motion is also denied. Application to amend the Class 4 application and points of claim by the Applicant
45. The Applicant seeks leave to file a Third Further Amended Application Class 4 and a Second Further Amended Points of Claim.

The Court has been provided with two comparisons between the current pleadings and those proposed. One version is provided by the First Respondent's solicitor, Mr Wilcher. It was attached to his affidavit sworn 5 May 2003. Counsel for the Applicant also handed up a schedule showing points of comparison between the current points of claim and the proposed points of claim. The most useful aspect of these tables is to show that the Applicant's claims have been noticeably reduced overall.

I accept the Applicant's submissions the case now sought to be brought by the Applicant is substantially the same as the previous pleadings, albeit now differently expressed and also reduced in scope. The only aspect that could be considered as new is a challenge to the construction certificates issued by the proposed Third Respondent. The claims still arise out of the same essential factual situation and are, in my view, similar in nature. The introduction of the challenge to the construction certificates does not amount to the commencement of fresh proceedings as the First Respondent argued.

Furthermore, I have not been referred to any irremedial prejudice caused to the First Respondent which would suggest that the Applicant should be prevented from filing the pleadings as it now seeks to do and in that regard I refer to the decision of The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 154 to 155.

Although I am minded to allow the amendment to the pleadings sought by the Applicant I note there has been no notice given to the intended new Third Respondent of the intention to join that company. Before making a final determination I consider it appropriate that the proposed Third Respondent have the opportunity to address the Court on whether it considers it should be joined as the Third Respondent in these proceedings. Accordingly notice will need to be given to the proposed Third Respondent and that opportunity provided.

I also note the Applicant has referred to this party as the intended new Third Respondent in its amended pleadings. However, as there is already a Third Respondent in this matter, namely the Minister for the Department of Land and Water Conservation, and there has been no notice of discontinuance against the Minister filed, the Applicant will need to clarify its position in relation to the Minister before the Court makes the proposed amendments to the pleadings.

As I have not yet formally granted the Applicant leave to amend its pleadings I will not make any determination on prayers 5 to 8 of the First Respondent's notice of motion, but rather stand these over to be dealt with at the appropriate time once the situation with the pleadings has been resolved.

1. Prayers 1 - 4 of the First Respondent's Notice of Motion filed in Court on 28 April 2003 are dismissed.
2. The Applicant is to serve its Notice of Motion dated 15 April 2003 with a copy of its proposed amended pleadings attached upon TG Gibson Pty Ltd by 1 July 2003.
3. The Applicant's Notice of Motion dated 15 April 2003 is stood over until 9:30am on 25 July 2003 before Pain J.
4. Prayers 5 - 8 of the First Respondent's Notice of Motion filed in Court on 28 April 2003 are stood over until 9:30am on 22 July 2003 before Pain J.

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