Carriage v Stockland Development Pty Ltd & Ors

4 In my judgment of Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148 ("Carriage No 7") which I handed down on 16 December 2004 I made the following final orders in relation to Grounds 1 and 2: 1. Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990, invalid. 2. The First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on that part of Lot 235 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990 without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979. 3. Costs are reserved.

5 As set out at par 2 above, there were five grounds raised by the Applicant in the proceedings and I have now finalised my decision on all but Ground 3. I noted in my decision Carriage No 7 that the issues in Ground 3, as set out in par 38 and 39 of my decision Carriage No 6, now need to be determined, a matter I must still undertake. As noted in Carriage No 7 once I have given my judgement on Ground 3 the issue of remediation of Lot 235, an issue which arises as a result of my finding in relation to Grounds 1 and 2, can be considered. As noted at [22] of Carriage No 7 the issue of whether there is further remediation necessary will require further evidence and submissions from the parties.

6 Ground 4 concerned the placement of fill on land known as the AIR land and this is dealt with at [40]-[56] in Carriage No 6. The Applicant was unsuccessful on this ground.

7 Ground 5 concerned the validity of a s 90 permit issued to the First Respondent by the Second Respondent and that challenge was unsuccessful. The Director General of the National Parks and Wildlife Service has not appeared today as costs issues in relation to Ground 5 are not before me. Any findings I make today do not concern what costs order, if any, I might make in relation to that ground.

8 There have also been a number of interlocutory proceedings in this matter with two interlocutory injunctions sought by the Applicant, the first being Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 ("Carriage No 1") and Carriage v Stockland (Constructors) Pty Ltd and Ors [No 3] [2003] NSWLEC 86 ("Carriage No 3"). There have also been two applications for security for costs made by the First Respondent being Carriage v Stockland (Constructors) Pty Ltd and Ors [No 2] [2002] 123 LGERA 214 ("Carriage No 2") and Carriage v Stockland (Constructors) Pty Ltd and Ors [No 5] [2003] NSWLEC 197 ("Carriage No 5"). The Applicant was partially successful in the first interlocutory application (Carriage No 1) and wholly successful in resisting the applications for security (Carriage No 2 and Carriage No 5). The First Respondent also unsuccessfully sought costs of the interlocutory injunction proceedings (Carriage v Stockland (Constructors) Pty Ltd and Ors [No 4] [2003] NSWLEC 129 ("Carriage No 4")).

9 The reason for this urgent application which was first filed last Thursday 18 December 2004 is that the Applicant is before the Federal magistrates court tomorrow, being 21 December 2004, in bankruptcy proceedings commenced by the First Respondent. According to the submissions of the Applicant's counsel: It is critical that any asset that Mr Carriage may have can be considered as an offset against the judgment debts being enforced by the First Respondent, including an order for costs made at an interlocutory stage of these proceedings.

Given this I agreed to hear this costs application on an expedited basis.

The Applicant's Arguments 10 The Applicant argued that the matter is at a sufficiently final stage to justify the making of a costs order in the Applicant's favour for Grounds 1 and 2, given that the Applicant has been successful in relation to these grounds. The Applicant noted that it did not seek costs orders as against the other Respondents but only as against the First Respondent in relation to these grounds.

11 The Applicant argued that no costs order ought be made in relation to Ground 4, in relation to which the Applicant was unsuccessful, as this was linked to the general issue raised by the Applicant in relation to Grounds 1 and 2 about which the Applicant was successful. That issue concerned the protection of aboriginal relics. The Applicant argued that I should apply the reasoning adopted by Cowdroy J in Fairfield City Council v Holroyd City Council [1999] NSWLEC 232 where he held at [5] that: … a party should not be deprived of its costs in the absence of misconduct or of finding that because the issue had such a remote prospect of success it should never have been litigated.

12 Alternatively, the Applicant argued that if a costs order is made in relation to Ground 4 that order should be that each party pay its own costs.

13 The Applicant's counsel argued that the Applicant was largely successful in relation to the interlocutory orders made by me in these proceedings in that, while the Applicant was not successful in all of these, the Applicant was generally successful.

The First Respondent's Arguments 14 The First Respondent argued that these proceedings are not yet final as the Court is yet to decide if any relief in the form of remediation orders in relation to Lot 235 will be made and has yet to decide Ground 3. In these circumstances the First Respondent argued that it is appropriate to postpone the decision on costs until the proceedings are finalised.

15 In the alternative, the First Respondent argued that if the Court is minded to order costs at this stage of the proceedings then the various issues in the proceedings are discrete with Ground 4 being quite separate from Grounds 1 and 2. Accordingly the First Respondent argued that an award of costs should be made in favour of the First Respondent in relation to Ground 4 as the Applicant was not successful on this ground.

16 In relation to costs on Grounds 1 and 2 the First Respondent argued that any order for costs should be made against the Fifth Respondent only as it was the private certifier's actions which resulted in the breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act").

17 Further, the First Respondent noted that the Applicant gave an undertaking to pay damages in the interlocutory proceedings, being Carriage No 1, in which I issued an interlocutory injunction relation to the AIR land. That interlocutory order has now been dissolved and accordingly the First Respondent argued that the undertaking should be taken into account in these costs proceedings.

Finding 18 I have a broad discretion under s 69 of the Land and Environment Court Act 1979 in relation to the award of costs. As set out in the Applicant's submissions, the relevant principles were set out by Pearlman J as follows in Save the Showground Inc v Min for Urban Affairs and Planning (1998) 105 LGERA 254 at p 255: (1) The discretion conferred upon the Court by s 69(2) is wide and unconfined (Oshlack at pp 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 p 180; Latoudis v Casey (1990) 170 CLR 534 at 557; Australian Conservation Foundation and Ors v Forestry Commission of Tasmania and Ors (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 p 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 p 567; Oshlack at p 213;) (5) However, the principle that costs follow the event is not a fixed or absolute rule (Oshlack at pp 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 EP&A Act, may include factors which have a public interest nature (Oshlack at p 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 p 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 p 213). 19 The Applicant argued that presumably in relation to Ground 4 the usual rule that costs follow the event should be departed from in this case as special circumstances apply as these proceedings are in the public interest. The circumstances relied on by the Applicant to support his submission that there are special circumstances are set out in par 10 of the written submissions as follows: (1) the high level of public interest in the proposed development at Sandon Point; (2) the general level of public interest in the proteciton of Aboriginal Objects and SCESFC; (3) Mr Carriage's lack if personal interest and his exercise of rights under s 123 of the EP&A Act to uphold the orderly development of land; (4) Mr Carriage's success on the critical issue as to whether there was development carried out on Lot 235 in breach of the EP&A Act (grounds 1 and 2); (5) the exposition of whether a construction certificate can be declared partially invalid; and (6) the challenge was arguable and not merely specious.

20 I should note that a high level of public interest in a matter alone does not justify a finding that a matter is in the public interest. I have observed already in earlier decisions in this matter that Mr Carriage has particular concerns in bringing these proceedings as an aboriginal elder; see Carriage No 2 at [9] - [10]. I do not need however to resolve in this judgment whether or not an award of costs should be made against Mr Carriage on the grounds of special interest.

21 As stated by Talbot J in Slack-Smith and Anor v Director General Department of Land and Water Conservation [2002] NSWLEC 245 the decision on whether or not costs should be apportioned is not a mathematical exercise of ticking off the paragraphs in the points of claim to see who won which issue. It is an exercise of discretion based on the whole of the circumstances which the court has before it.

22 While not completely finalised, the matter has reached an appropriate stage for the making of some costs orders and given the circumstances in which the Applicant finds himself in the Federal magistrates court I consider that it is appropriate that I do so. I consider that I should award costs in the Applicant's favour in relation to Grounds 1 and 2. He has clearly been successful in obtaining the orders made in Carriage No 7. Given my findings in that judgment I do not think my decision as to costs is dependent on whether or not I make remediation orders. A review of the outcomes of the numerous interlocutory proceedings suggests that the Applicant was generally successful in these. The only matter in which the Applicant was entirely unsuccessful was the second interlocutory application (Carriage No 3).

23 I do not consider the undertaking to give damages provided by the Applicant in relation to the interlocutory injunction is at all relevant to whether or not I award costs.

24 I consider the costs order in relation to Grounds 1 and 2 ought be made against the First Respondent rather than the Fifth Respondent as I agree with the Applicant's submissions that the First Respondent has had the substantive carriage of these proceedings and, as holder of the relevant development consent, has an important economic interest at stake in these proceedings. The First Respondent also supplied to the Fifth Respondent the relevant plans for certification.

25 The final issue to resolve is whether I make any costs order in relation to Ground 4. When the interlocutory proceedings and final proceedings are viewed as a whole I consider that Grounds 1, 2 and 4 are interlinked. Consequently I consider that I should not make any order as to costs on Ground 4. While the Applicant was unsuccessful in relation to Ground 4 I do not think the Applicant's claim in relation to this ground was unmeritorious and, while hearing time was occupied by Ground 4, that time was not substantial when viewed in the context of time taken by the other issues pursued by the Applicant.

26 I should note that these comments concerning linked issues clearly cannot apply to Grounds 3 and 5. Any costs application in relation to Grounds 3 and 5 will be considered on the basis that these issues were separate in the proceedings.

Orders 27 Accordingly I make the following orders: 1. The First Respondent pay the costs of the Applicant in relation to Grounds 1 and 2 of these proceedings. 2. The First Respondent pay the costs of the Applicant in relation to the costs hearing on 20 December 2004.

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