Donnelly & Anor - V - Capricornia Prospecting Pty Ltd & Ors [1999] NSWLEC 39 - NSWLEC 1999 case summary

Land and Environment Court (NSW)|1999-02-18|Before: Lloyd J

Land and Environment Court of New South Wales CITATION: Donnelly & Anor - V - Capricornia Prospecting Pty Ltd & Ors [1999] NSWLEC 39

PARTIES APPLICANT: DONNELLY & ANOR

RESPONDENT: CAPRICORNIA PROSPECTING PTY LTD & ORS

LEGISLATION CITED: Costs - security for Discretion not to declare party vexatious litigant

DATES OF HEARING: 02/18/1999; 02/19/1999; 03/22/1999

DATE OF JUDGMENT DELIVERY: 03/05/1999

APPLICANT: A Oshlack (agent)

RESPONDENT: LEGAL REPRESENTATIVES: First, Second and Third respondents: C Ireland (s) and T Holden (s) Solicitors: Blake Dawson Waldron Fourth respondent: J Maston Solicitors: Taylor Kelso

The applicants have commenced proceedings for a number of declarations and orders relating to the validity of a development consent granted under the Environmental Planning & Assessment Act 1979 for a proposed water pump and pipeline; and the validity of a water permit granted under Division 3B of Part 2 of the Water Act 1912. The development consent and water permit are to enable the pumping of water from Nelson Creek for the Timbarra Gold Mine on Mining Lease 1386 granted to the first respondent and on Mining Lease 1426 granted to the second respondent. The applicants also seek an order that leave be granted to them pursuant to the Environmental Offences & Penalties Act 1989, s 25, to bring proceedings to restrain a breach of the Water Act .

The fourth respondent, Tenterfield Council, submits to such order as the Court may make in the proceedings, other than an order for costs.

The present matter is a Notice of Motion by the first, second and third respondents (who I shall for convenience call "the respondents") for an order that the applicants provide security for costs; a declaration that the applicants Andrew Donnelly and David Mundine are vexatious litigants within the meaning of the Land & Environment Court Act 1979, s 70(2); a declaration that the representative of the applicants, Alan Oshlack, is a vexatious litigant within the meaning of the Land & Environment Court Act , s 70(2); and for consequential orders.

The applicants, Andrew Donnelly and David Mundine, have commenced three principal proceedings against some or all of the respondents in relation to the Timabarra Gold Mine on the two mining leases described in paragraph 1 above, near Tenterfield. In the first two proceedings the applicants also brought related proceedings in the Court of Appeal. The three proceedings are as follows.

Proceedings for a declaration that Mining Lease 1386 is invalid; and that a development consent granted for road works is invalid. The applicants were represented in those proceedings by counsel instructed by Craddock Murray Neumann, solicitors. That is to say, there was no involvement in those proceedings by Mr Oshlack.

Proceedings to restrain the carrying out of road works outside the declared road reserve contrary to the development consent for such road works; and to restrain the carrying out of work within Mining Lease 1386 and which was said to be either damaging and threatening to damage Aboriginal relics contrary to the National Parks & Wildlife Act 1979, s 90(1) and either damaging or threatening to damage the habitat of threatened species contrary to the National Parks & Wildlife Act , s 118D(1). Mr Oshlack represented the applicants in those proceedings as their agent pursuant to the Land & Environment Court Act , s 63.

The present proceedings, which I have briefly described in paragraph 1 above. Mr Oshlack has appeared in these proceedings for the applicants as their agent, pursuant to the Land & Environment Court Act , s 63.

I set out below a chronology which summarises the various applications and orders made in each matter.

Date Proceedings Nature of Matter/Orders

41/2 day hearing on preliminary issues of law and strike out Notice of Motion brought by two of the respondents before Talbot J.

Sheahan J dismissed an application for security of costs against the applicants.

Talbot J concluded that the LEC lacked jurisdiction to make any declaration or order in respect of the validity of ML 1386 and was an inappropriate forum to determine the existence of native title. Paragraphs in the applicants' Second Further Amended Points of Claim were struck out. Paras 5 and 6 of the applicants' Further Amended Application Class 4 were dismissed.

The applicants file a Notice of Discontinuance of the remaining Points of Claim.

Following the filing of a Notice of Discontinuance, Talbot J ordered that the Applicants pay the second and third Respondents' costs.

The applicants filed a Notice of Discontinuance in the Court of Appeal.

Ex parte injunction by applicants before Sheahan J.

1 day hearing on application by applicants for interlocutory relief before Bignold J. The respondents gave an undertaking to allow the applicants access to the land and not to damage or destroy relics.

1 day hearing before Bignold J on applicants' application for interlocutory relief. The previous undertaking given by the respondents in relation to the protection of relics was confirmed.

Three day hearing on applicants' application for interlocutory relief before Lloyd J.

Lloyd J concluded that the application for interlocutory relief be refused.

1 day hearing before Pearlman J of Notice of Motion by two respondents for summary dismissal of the proceedings and/or the striking out of parts of the applicants' points of claim.

1 day hearing of application for interlocutory relief pending hearing of leave to appeal from judgments of Lloyd J. Application before Sheppard AJA in Court of Appeal.

Judgment of Sheppard AJA. He considered imposing a restraint on the respondents reducing the area which may be cleared. Sheppard AJA gave Mr Ireland until 16.1.98 to refer the matters to his clients and return to the Court.

Undertakings given by the respondents to Sheppard AJA in Court of Appeal.

Mention before Handley and Priestley JJA respondents give certain undertakings to the Court.

Pearlman J ordered that paras 3, 7 and 8 of the applicants' Amended Class 4 application be struck out. Paras 1, 2, 9 and 12 were not struck out.

Mention before Handley JA. Matter stood over to 10 March 1999 to allow trial in Land & Environment Court.

1 day directions hearing before Pearlman J. Directions for the filing of affidavits were subsequently not complied with by the applicants.

Further directions hearing before Pearlman J - limited access to Mr Oshlack allowed upon the land.

Application for interlocutory relief before Cowdroy AJ.

Cowdroy AJ ordered that the applicants' Notice of Motion for interlocutory relief dated 5.2.99 be dismissed. Cowdroy AJ stated that a prima facie case has not been established nor that urgent injunctive relief is essential. Respondents' application for indemnity costs was refused.

Injunctions granted by the Mining Wardens' Court against Alan Oshlack, David Mundine and 66 other people restraining them from entering upon the land or upon the access road. (There is, however, no evidence before me that either Alan Oshlack or David Mundine unlawfully entered upon the land or upon the access road.)

Sidis DCJ upheld the injunctions granted by the Mining Warden.

There is uncontradicted evidence before me that each of the applicants, Andrew Donnelly and David Mundine, are impecunious. I am completely satisfied that they will be unable to pay the costs of the respondents if ordered to do so. No evidence was given by them to the contrary. According to Mr Oshlack, the applicants are the traditional custodians of the land for the Millerah Bundjalung people. That is to say, the applicants are the traditional custodians of the land over which the two mining leases relate and the land to which the development consent and the water permit relate. The applicants have each lodged a claim over the land with the Native Title Tribunal (Cth) "on behalf of all related families". According to a copy of the application lodged by Mr Mundine, which was tendered, the claim is for "the Wujehbal, Wahlubal and the Wehlubal people of the Bundjalung nation". According to a copy of the applications lodged by Mr Donnelly, the claim is on behalf of the Aboriginal people of the areas known under the following different names: Wahlabul, Werlabel, Widjibal and Bundjalung. Accordingly, it appears that the applicants are bringing the proceedings for the benefit of others.

I should note that the applicants' claim to be the traditional native title holders is disputed not only by the respondents but by others. There is also a Native Title Claim lodged with the Native Title Tribunal by Mr Eric Walker, a Bundjalung Elder, who claims native title over the land on behalf of the Bundjalung people of Tabulam. Mr Walker's claim has the support of the Native Title Unit of the New South Wales Aboriginal Land Council.

The fact that the applicants are bringing the proceedings for the benefit of others is confirmed by the following:

(a) On 5 February 1998 Mr Oshlack sought leave to amend the proceedings to add Mr Mundine as an applicant. On being asked the basis on which the application for joinder was made Mr Oshlack told the Court:

"David Mundine is a native title claimant over the relevant land on which the Nelson Creek pump is situated. This is the basis for his claim to become an applicant along with Andrew Donnelly who claims the same interest."

(b) A statement made by Mr Oshlack to Sheppard JA in the Court of Appeal, asserting that the applicants are the traditional custodians for and have native title claims over the land for the families of the Millerah Bundjalung people noted by Sheppard JA in his judgment.

(c) A reference in the judgment of Talbot J of 2 June 1998 to the claim lodged with the Native Title Tribunal and to which I have referred in paragraph 6 above.

(d) The fact that native title interests are held communally ( Mabo v Queensland (No 2) ((1992) 175 CLR 1 at 51 per Brennan J, 109-110 per Deane and Gaudron JJ).

I have referred in the Chronology in paragraph 5 above to the order for costs made by Talbot J on 9 July 1998. The respondents have filed in the Supreme Court for the assessment of their costs in proceedings 40295/97 and a costs assessor was appointed in December 1998. The respondents are claiming $190,000 in costs. There has been no response from the applicants nor from their solicitors in those proceedings (Craddock Murray Neumann) to the respondents' solicitors attempts to settle the costs issue and no costs have been paid by the applicants. The respondents have since incurred additional costs. The total amount of costs incurred by them thus far (including the sum of $190,000 in proceedings 40295/97) is now about $310,000.

The respondents intend to formally demand the payment of the costs the subject of Talbot J's judgment of 9 July 1998 once they are assessed and a liquidated debt becomes due. The respondents then intend, if necessary, to file a creditors petition and seek a sequestration order against the estates of Mr Donnelly and of Mr Mundine under the Bankruptcy Act 1966 (Cth). In these circumstances they submit that it is appropriate that they be given some measure of protection as would be afforded by the payment of an amount into Court by way of security for costs.

The Court's power to make orders for security for costs isderived from three sources:

(i) the Land & Environment Court Act , s 69(3) and (4):

"(3) The 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.

(4) The security referred to in subsection (3) shall be of such amount, and given at such time and in such manner and form, as the Court directs."

(ii) The Supreme Court Rules , Part 53 (which applies in this Court by dint of the Land & Environment Court Rules ), Pt 6 r 1, r 2 of which relevantly provides:

"2(1) Where, in any proceedings, it appears to the Court on the application of a defendant -

(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so;

The Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given."

(iii) The Court's inherent jurisdiction ( Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443 at 448-449, per Holland J; Edwards v The Minister (1985) 55 LGRA 171 at 173, per Bignold J; Johnson v Lake Macquarie City Council (1995) 87 LGERA 22 at 25 per Bannon J; and Tinda Creek Spiritual and Environment Centre v Baulkham Hills Council (Land & Environment Court, Sheahan J, 27 November 1997, unreported).

In Tinda Creek Sheahan J usefully set out the considerations which apply in the exercise of the Court's discretion. In particular, Sheahan J adopted the following considerations described by Beazley J in KP Cable Investments Pty Ltd v Meltgow Pty Ltd (1995) 56 FCR 189 at 197-198:

(i) Whether the application for security has been brought promptly;

(ii) the strength and bona fides of the case in which security is sought;

(iii) whether the impecuniosity of the plaintiff/applicant results from the respondent/defendant's conduct subject of the claim;

(iv) whether the application for security is 'oppressive' in the sense of denying an impecunious citizen or organisation a right to litigate;

(v) whether persons standing behind the plaintiff/applicant are likely to benefit and willing to provide the security;

(vi) whether persons standing behind the plaintiff/applicant have offered any personal undertaking to be liable for the costs, and, if so, the form of any such undertaking;

(vii) whether the applicant for security is in substance a plaintiff or the proceedings are defensive in nature.

In Town Watch Inc v Grafton City Council (1997) 93 LGERA 401, Pearlman considered the following factors in making an order that an applicant provide security for costs:

(i) The purpose for which the applicant is suing; (ii) impecuniosity of the applicant; (iiI) the strength of the applicant's case; (iv) the public interest nature of the litigation.

I turn now to deal with each relevant consideration in turn.

Whether the application for security has been brought promptly .

The proceedings were commenced by the applicants by filing their application in the Court on 23 December 1998. The Notice of Motion for security was filed on 28 January 1999. Having regard to the fact that much of the intervening period was taken up by the Christmas and New Year break, I am satisfied that the Notice of Motion for security has been brought promptly.

The strength and bona fides of the case in which security is sought

The strength and bona fides of the applicants' case must be regarded as weak, particularly in view of the judgment of Cowdroy AJ of 15 February 1999 in rejecting the application for interlocutory relief. The reason for the rejection of the application for interlocutory relief is that the applicants had not demonstrated a prima facie case for such relief. There is at present nothing by way of evidence to impugn the validity of either the development consent or the water permit referred to in the application.

Moreover, for the reason described in paragraphs 41 and 46 below in relation to the question of whether the applicants are vexatious litigants, there exists real doubt as to whether the application is brought for a bona fide purpose but instead is brought for the collateral purpose of causing maximum disruption and inconvenience to the respondents and to stop the operation of the mine. In White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169, Goldberg J in the Federal Court of Australia held (at 239-240) that it was an abuse of process for a party to use court proceedings and procedures for a purpose unrelated to the objectives which the court process is designed to achieve. Goldberg J quoted with approval the following passage from the judgement of Lord Evershed MR in Re Majory [1955] Ch 600 at 623:

"… Court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist … "

"It is the predominant purpose of the litigation which is the relevant criterion and it is not necessary for the improper purpose to be the sole purpose of the litigation before abuse of process can be established : Metall and Rohstoff v Donaldson Inc [1990] 1 QB 391 at 469; Williams v Spautz (1992) 174 CLR 509 at 529." (The emphasis is mine.)

In the present case, even if it be accepted that the applicants have a genuine claim that there have been breaches of the Environmental Planning & Assessment Act and/or of the Water Act, that does not make the application one which is brought for a bona fide purpose if it is also brought for an improper purpose and the latter purpose is the real object of the action. As explained in paragraphs below, the evidence to show that the applicants are bringing the proceedings for an improper purpose is undisputed. The fact that there may also be a proper purpose does not mean that an abuse of process is not established. It follows that I am not satisfied that either the strength or the bona fides of the applicants' case are such as to deny the respondents an order for security for costs.

Whether the impecuniosity of the plaintiff/applicant results from the respondent/defendant's conduct subject of the claim

I have referred (in paragraph 6 above) to the impecuniosity of the applicants. There is no evidence to suggest that their impecuniosity arises from the conduct of the respondents.

Whether the application for security is "oppressive" in the sense of denying an impecunious citizen or organisation a right to litigate. Whether persons standing behind the plaintiff/applicant are likely to benefit and willing to provide the security .

The fact that an order for security for costs may frustrate an applicant's right to litigate does not automatically lead to the refusal of an order for security for costs, but is merely an important factor to be considered in the exercise of the Court's discretion ( Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLR 542 at 545, per Clarke J).

Moreover, a court will not grant security for costs against an impecunious litigant solely on the ground of that impecuniosity ( Fletcher v Commissioner of Taxation (1992) 37 FCR 288 at 270 per Hill J). The general rule is that poverty is no bar to a litigant ( Cowell v Taylor [1885] 31 Ch D 34 at 38, per Bowen LJ). The general rule in the United Kingdom is stated by Megarry J VC in Pearson v Naydler (1977) 1 WLR 899 at 902; (1977) 3 All ER 531 at 533:

"The basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is is ancient and well established."

The principle described by Megarry VC must now be read in the light of all the factors to be considered, as described by Beazley J in KP Cable and by Pearlman J in Town Watch . The principle is also subject to the express provisions of Pt 53 r 2 of the Supreme Court Rules which applies in this Court. I have set out the relevant parts of the Rule in paragraph 11 above. I have referred to the fact that the applicants claim to be acting in a representative capacity. There is no evidence before me to suggest that those whom the applicants represent, namely other members of their family or of the Wehlubal people of the Bundjalung nation, or the Millerah Bundjalung people, are also without means. It is reasonable to expect that those persons standing behind the applicants should contribute to the costs of the proceedings and should contribute to the provision of the security of such security as may be ordered.

The provision of security of costs does not, of course, necessarily mean that those providing the security will be out of pocket. If at the final hearing the applicants are successful then they will be no worse off for having given the security: they will, in all probability, get it back.

Whether persons standing behind the plaintiff/applicant have offered any personal undertaking to be liable for the costs and, if so, the form of any such undertaking.

No other person has offered any personal undertaking to be liable for the costs in the event that an adverse order for costs is made against the applicants.

Whether the applicant for security is in substance a plaintiff or the proceedings are defensive in nature .

The mere fact that the proceedings are brought to remedy an alleged breach of the Environmental Planning & Assessment Act or of the Water Act is not, of itself, sufficient to refuse to grant security for costs ( Town Watch Inc v Grafton City Council , supra, at 405, per Pearlman J). There is no evidence before me to establish that these proceedings are in the public interest. Talbot J held, in his judgment on costs of 9 July 1998, that the rights claimed by the applicants are, in a sense, private rights. That is to say, they are pursuing a course of action on the basis of their native title claims. The collateral purpose of the applicants in bringing the proceedings in the present case, and to which I refer in paragraph 41 below, further suggests that the applicants are pursuing private rights.

It follows from the discussion under each of the considerations which apply to an application for security for costs that, on balance, an order for security should be made. It is inappropriate that the applicants should commence fresh litigation against the respondents when they have an unsatisfied order for costs against them made in earlier proceedings between the parties. It would be unfair to the respondents to allow this litigation to proceed without some form of security for their costs in these proceedings. An order for security for costs would not operate unfairly upon the applicants. As I have noted in paragraph 22 above, there is no evidence to suggest that others who stand behind the applicants are unable to provide the security sought by the respondents in this case; and if in due course the applicants are successful following the final hearing then the security will, in all probability, be returned to them. I note that the applicants do not dispute the amount of security which is sought. Accordingly an appropriate order for security for costs will be made.

Section 70(2) of the Land and Environment Court Act 1979 ("LEC Act") provides as follows:

"Where any person (in this subsection called the vexatious litigant ) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved ) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in the Court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by the vexatious litigant without leave of the Court."

In Attorney General v Wentworth (1988) 14 NSWLR 481 Roden J discussed the meaning of vexatious in the context of s 84 of the Supreme Court Act , which is virtually identical to s 70(2) of the LEC Act. He said (at 491):

"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe the test may be expressed in the following terms:

Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

They are vexatious if they are brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issue to which they give rise.

They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b) the proceedings must also have been 'habitually and persistently' instituted by a litigant."

"'Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically,...'persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness."

The judgement of Roden J in Wentworth was adopted with approval by Stein J in Vallasis v South Sydney City Council (1992) LGERA 275, and by me in Armidale City Council v Connell (Lloyd J, 1 September 1997, unreported).

Orders sought against Andrew Donnelly and David Mundine

The respondents seek a declaration and an order under s70(2) of the Land & Environment Court Act that Andrew Donnelly and David Mundine should be declared vexatious litigants and be prevented from instituting or continuing any proceedings against the respondents in relation to the Timbarra Gold Mine without further leave of the Court.

It is the respondents' submission that the 4 previous sets of proceedings in the last 12 months indicates that the applicants have "habitually and persistently" instituted legal proceedings against the respondents in relation to the Timbarra Gold Project. The interlocutory applicants can also be considered for the purpose of s 70(2). There have in fact been three unsuccessful applications for interlocutory relief, one in each proceedings 40164/98, 40783/98 and 40243/98. The respondents submit that the details of the litigation brought against the respondents shows that the applicants have behaved in a manner which satisfies Roden J's definition of "habitually and persistently" in Wentworth (at 492).

The respondents further suggest that there is evidence from which the Court may infer that whenever the respondents have been granted a significant new development consent or statutory approval, there is a high degree of likelihood that the applicants will commence litigation seeking to have the approval overturned. The respondents rely on the statement of Alan Oshlack outlined in the affidavit of Clifford Robert Ireland dated 28 January 1999 (paragraph 24) where Alan Oshlack, acting as an agent for the applicants, states "I hear a water licence is about to be granted. We will be challenging that, too." It is submitted on behalf of the respondents that this statement shows the stubbornness and persistence of the applicants and indicates that even before this statutory licence was granted the applicants had already decided to litigate.

Once the first limb of s 70(2) ("habitually and persistently") has been satisfied the next element that must be looked at is whether the proceedings have been, in general, commenced "without reasonable ground."

The respondents rely on the following findings of the Court to conclude that the applicants have, in general, commenced proceedings without reasonable grounds. Talbot J in his judgement of 2 June 1998 held that the Land and Environment Court lacked jurisdiction to make any declaration or order in respect of the validity of ML 1386 and was an inappropriate forum to determine the existence of native title. Further in Talbot J's costs judgment of 9 July 1998 His Honour held (at 4) that there were no reasonable grounds for attempting to seise the Land and Environment Court with the jurisdiction over native title issues that it did not otherwise possess. As previously noted, His Honour ordered that the applicants pay the respondents costs.

In my judgment of 25 September 1998 I was of the view was that the proceedings before me were not based on reasonable grounds. I held that there was no serious question to be tried. Sheppard AJA declined to make orders interfering with my exercise of discretion; and Handley and Priestley JJA have stood the matter over until 10 March 1999 awaiting a trail date in the Land and Environment Court. In Pearlman J's judgment of 29 October 1998 her Honour ordered that the applicant's Amended Class 4 Application be partially struck out on res judicata grounds.

In the most recent judgement in relation to these proceedings Cowdroy AJ in his judgment of 15 February 1999 held (at 4) that a prima facie case had not been established to show that urgent injunctive relief was essential. The applicants' Motion for an interlocutory injunction was dismissed.

It is apparent from Roden J's decision in Wentworth at 494 that the various proceedings should be viewed as a whole. As such it is not necessary that each and every action be without reasonable grounds. Taking this approach it can be seen that the Applicants have instituted proceedings other then on reasonable grounds and therefore satisfy the second limb of s 70(2) of the Land & Environment Court Act .

Finally the third limb of s 70(2) of the Land & Environment Court Act must be satisfied, namely, that the proceedings are "vexatious". In order to determine if the proceedings have been vexatious it is useful to return to the judgment of Roden J in Wentworth : proceedings may be vexatious if they are brought for a collateral purpose. In Attorney General v Solomon (1987) 8 NSWLR 667 Young J (at 674) states that "it is abundantly clear that it is a gross abuse of process to commence proceedings in a Court for a collateral purpose."

The respondents rely on the evidence contained in the affidavit of Clifford Robert Ireland dated 28 January 1999 and the affidavit of Timothy Charles Holden dated 2 February 1999 to infer that the legal proceedings brought by the applicants have been brought to complement an ongoing campaign of direct action protest against the Timbarra Gold Mine. In the affidavit of Clifford Ireland (paragraph 24), Alan Oshlack, as agent for the applicants is quoted as saying "We will not stop litigation until Ross stops mining at Timbarra." The respondents rely on this statement to show that the actual purpose for instituting proceedings against the respondents is to stop the mining at the Timbarra Gold Mine and that any additional purpose claimed is a front to this fundamental aim.

Although there is no direct evidence of the involvement of Andrew Donnelly or David Mundine in any illegal on site protest activities. The respondents submission is based on the inference that proceedings 40164/98, 40783/98 and 40243/98 have been brought as an adjunct or complement to the mass demonstrations and protests on the mine site.

As noted in paragraph 17 above, in White Industries (Qld) Pty Ltd v Flower & Hart , supra, Goldberg J, held (at 239) that "it is not necessary for the improper purpose to be the sole purpose of the litigation before abuse of process can be established." His Honour adopted the test in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 in which Bridge LJ stated (at 503):

"If it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process."

There is evidence to suggest that the applicants in this case would not have brought proceedings against the respondents but for the ulterior purpose to stop the mining at the Timbarra Gold Mine. Although there have been assertions made by the applicants that the reasons for bringing the various proceedings against the respondents have been related to protecting the environment and aboriginal artefacts on the site, it is clear from Goldberg J's judgment that the improper purpose does not have to be the sole purpose for bringing litigation.

It is also clear from the analysis of Roden J in Wentworth, that for this Court to find that the applicants are vexatious litigants the Court must be satisfied that either the proceedings were instituted with the intention of annoying or embarrassing the Respondents or brought for a collateral purpose or they are obviously untenable as to be utterly hopeless. Section 70(2) of the Land & Environment Court Act requires that the Court must also find that the proceedings were instituted "without reasonable grounds" and have been "habitually and persistently" instituted by the litigant.

Turning to the relevant facts in this proceeding, it is apparent that there is evidence to show that the applicants have instituted proceedings against the respondents in a habitual and persistent manner and have instituted some of the proceedings without reasonable grounds. The Respondents have also been able to show that the proceedings brought by the Applicants including the present one, have been brought for a collateral purpose, namely to stop mining at the Timbarra Gold Mine.

The power of the Court under s 70(2) of the Land & Environment Court Act to find that the applicants are vexatious litigants is discretionary. At the present time I am satisfied that the applicants fall within all the necessary limbs of s 70(2) of the Act. Nevertheless, in the exercise of the Court's discretion and after anxious consideration I decline to make the orders sought by the respondents. It is, of course, open to the respondents to make a further application under s 70(2) of the Act, in reliance not only on the applicants' conduct to the present time but also on their future conduct if it falls within the section. The order for security of costs will test the genuineness of the applicants' claim. If the applicants bring another proceeding, however, which lacks merit then that may tilt the balance in favour of an order that the Applicants be declared vexatious litigants.

In addition to the orders sought against the applicants the respondents seek an order that Alan Oshlack is a vexatious litigant. The respondents rely on the same evidence as they rely on for the application against Andrew Donnelly and David Mundine.

The decision of Attorney General v Solomon (1987) 8 NSWLR 667 indicates that proceedings may be "instituted" by a person even though others are named as the applicants or plaintiffs on the face of the Court document. In that case Young J held (at 673) that the evidence showed "that as a matter of fact these proceedings were instituted by the defendant in other person's names". Young J further held (at 678) "looking at the whole of the litigation, it is abundantly clear that it was instituted by Mr Solomon for himself or his companies mainly in an attempt to divert attention from the prosecutions which had been launched against him."

It was held in that case that Mr Solomon was a vexatious litigant. He was at least the director, if not the managing director of the companies that were named as plaintiffs in the Court proceedings and thus there was a direct link between Mr Solomon and the proceedings before the Court.

No such link has been established in the present case. There is no evidence to indicate that Alan Oshlack is directly involved with Andrew Donnelly or David Mundine in anyway other then as their agent. There is also no evidence to show that Mr Oshlack is acting for any personal gain or benefit.

Furthermore Mr Oshlack did not represent the Applicants in the proceedings before Talbot J. The applicants were represented by solicitors. I have thus come to the conclusion that Mr Oshlack is acting solely as an agent for the applicants and is in no way involved in the proceedings personally and accordingly the orders sought against Mr Oshlack are refused.

The applicants give security for the costs of the first, second and third respondents of and incidental to the proceedings in the sum of $20,000 in a form satisfactory to the Registrar.

The proceedings be stayed until the security in order 1 is given.

I certify that this and the preceding 27 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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.

Donnelly & Anor - V - Capricornia Prospecting Pty Ltd & Ors [1999] NSWLEC 39

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