Donnelly & Mundine -V- Ross Mining Nl & Ors [1999] NSWLEC 76

LEGISLATION CITED: Costs - security for costs - principles to be applied Interlocutory Relief - security for costs - principles to be applied

DATE OF JUDGMENT DELIVERY: 03/30/1999

Applicants: Mr A Oshlack (Agent)

First, Second and Fifth Respondents: Mr C Ireland (Solicitor) Solicitors: Blake Dawson Waldron

LEGAL REPRESENTATIVES: Third Respondent: Mrs M-L Taylor (Solicitor) Solicitors: Taylor Kelso

Fourth Respondent: Mr A Galasso (Barrister) (23/03/99) Solicitors: National Parks & Wildlife Service

Contents Paragraph Principles to be applied for the exercise of discretion to make an order for security for costs

8 - 19 1. Whether the application has been made promptly 20 - 61 2. Strength and bona fides of the applicants' case 62 - 79 3. Whether the application for security is oppressive 80 - 89 4. Whether the applicants are acting in a mere nominal capacity 90 - 96 The Public interest nature of the litigation 97 - 100 Conclusion 101 - 102 Orders 103

IN THE LAND AND Matter No. 40164 of 1998 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 30 March 1999 ANDREW DONNELLY and DAVID MUNDINE Applicants v

ROSS MINING NL First Respondent CAPRICORNIA PROSPECTING PTY LTD Second Respondent TENTERFIELD SHIRE COUNCIL Third Respondent DIRECTOR GENERAL NATIONAL PARKS AND WILDLIFE SERVICE Fourth Respondent TIMBARRA GOLD MINES PTY LTD Fifth Respondent

The first, second and fifth respondents, by Notice of Motion filed in Court on 12 March 1999, seek an order that the applicants provide security for costs of the first second and fifth respondents in the sum of $20000 or such other sum as the Court thinks fit.

The applicants claim relief by way of declarations and orders in the light of alleged breaches of s 90 and s 118D of the National Parks and Wildlife Act 1974 and the Environmental Planning and Assessment Act 1979 (the EPA Act).

They are also seeking an order that leave be given pursuant to s 25 of the Environmental Offences and Penalties Act 1989 to bring proceedings for a declaration that the first and second respondents "have breached s 43 of the Conditions of Authority of Mining Lease 1386" (ML 1386).

There is also before the Court a further Notice of Motion dated 12 March 1999 whereby the applicants seek an order joining William Petrie as a sixth respondent and granting access to David Milledge for a 48 hour period to inspect certain land.

Tenterfield Shire Council appears as the third respondent in support of the application for security for costs by the first, second and fifth respondents.

The Director General of the National Parks and Wildlife Service appears as the fourth respondent, but neither supports nor opposes the making of the order.

It is convenient that the first, second and fifth respondents be hereafter referred to as the respondents for the purposes of this judgment, unless otherwise indicated.

Principles to be applied for the exercise of discretion to make an order for security for costs

In Bryan E Fencott Pty Ltd & Anor v Eretta Pty Ltd (1987) 16 FCR 497 French J conducted a detailed review of the authorities and examined the principles governing the exercise of the discretion to order security for costs.

Beazley J in K P Cable Investments Pty Ltd v Meltglow Pty Ltd & Ors (1995) 56 FCR 189, relying substantially on the review by French J, found that the law is now settled that the discretion to order security for costs is unfettered and should be exercised having regard to all of the circumstances of the case without any predisposition in favour of the award of security.

Sheahan J embraced the considerations adopted by Beazley J in Cable in Tinda Creek Spiritual and Environment Centre v Baulkham Hills Council & Ors (unreported 40066 of 1997 27 November 1997) and Lloyd J referred to them with approval in Donnelly & Anor v Capricornia Prospecting Pty Ltd & Ors (unreported [1999] NSWLEC 39 5 March 1999).

It is appropriate therefore to summarise a number of the well established guidelines identified by French J in Fencott as adopted by Beazley J in Cable .

1. An application for security for costs should be brought promptly.

2. That regard is to be had to the strength and bona fides of the applicant's case are relevant considerations.

3. Whether the respondent's application for security is oppressive in the sense that it is being used merely to deny an impecunious applicant a right to litigate.

4. Whether there are persons standing behind the applicant who are likely to benefit from the litigation and who are willing to provide the necessary security. An issue referred to by Beazley J in this respect is whether persons standing behind the applicant have offered any personal undertaking to be liable for the costs and, if so, the form of any such undertaking.

Although Fencott and Cable were both cases dealing with the special power relating to corporations, the principles are nevertheless apposite to the circumstances of the present case.

In Fencott , at 513, French J expressed the opinion that the effect of the authorities is that the probability or certainty that an order for security for costs will frustrate the applicant's claim will not automatically lead to such order being withheld. It is however a factor relevant to the granting of an order and will weigh against it where there is no party standing behind the applicant who is in a position to provide the necessary security.

The authorities referred to and discussed in Fencott and Cable support the adoption of the guidelines and opinions outlined above and I see no reason to depart from a course which takes them into account. In this respect I am mindful of the course taken in this Court by Sheahan J in Tinda Creek , Lloyd J in Donnelly & Mundine and by other Judges.

In Town Watch Inc v Grafton City Council & Anor (1997) 93 LGERA 401 at 405 the Chief Judge of this Court, when considering the relevant matter whether the proceedings had been brought in the public interest, expressed a tentative view that where proceedings are commenced pursuant to the open standing provisions of s 123 of the EPA Act, there is some warrant to ensure that an opportunity to restrain or remedy a breach of the statute is not unjustifiably impeded. However, the mere fact that they are brought for that purpose is not, of itself, sufficient to refuse to grant security for costs.

Finally it must be emphasised, the Court is vested with an unfettered discretion which should not be exercised against individual applicants solely on the grounds of impecuniosity.

In my opinion Hill J correctly expressed the general rule applicable in the exercise of the Court's general discretion to make an order for security for costs in Fletcher & Ors v Commissioner of Taxation (1992) 37 FCR 288 as follows at 290:- As a general rule, in the exercise of its general discretion to order security for costs, a court will not make an order for security for costs against an individual plaintiff solely on the grounds of impecuniosity. 18. The authorities in support of this general rule are examined in the judgment.

19. Citing relevant authority at 505 French J, in Fencott , noted an important exception to the above principle, namely that an impecunious plaintiff who is only a nominal plaintiff, that is to say who sues for the benefit of another, may be required to give security.

1. Whether the application has been made promptly 20. I have already recognised the accepted principle in the ordering of security for costs that such an application should be made promptly.

An important consideration therefore is how far the applicant has proceeded in the proceedings. Where the applicant has been allowed to incur substantial costs without any step being taken to apply for an order for security for costs, it is difficult to ignore the unfair or otherwise result from an order. Thus delay is an important factor to be weighed in deciding what is just between the applicant and the respondent.

Situations could occur in which a late application could be made without prejudice. There may also be cases where the ground in support of the application does not become apparent until a late stage in the proceedings.

In my view the correct approach to the consideration of delay in making an application for an order for security was identified by Waddell J in Southern Cross Exploration NL & Ors v Fire & All Risks Insurance Co Ltd & Ors (1985) 1 NSWLR 114 when he quoted the following passage, although originally expressed in a different context, from Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 240:- … Two circumstances, always important in such cases (that is where a defendant relies upon the doctrine of laches) are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

The class 4 application was filed by the applicants on 21 August 1998. On that same day Sheahan J refused an ex parte interlocutory application for an injunction.

On 3 September 1998 the applicants again sought interlocutory injunctive relief restraining the respondents from carrying out road upgrading work and also work on ML 1386. The application was adjourned by Bignold J to 10 September 1998 on the giving of an undertaking by the first, second and third respondents in relation to access to the road construction site and the protection of some identified relics.

On 10 September 1998, by consent, the matter was stood over to 11 September 1998 when a timetable was set for filing and service of an Amended Application and Points of Claim, Points of Defence and written answers to a request for further and better particulars.

Subpoenas addressed to the first and fourth respondents were returned on 16 September 1998 and 23 September 1998.

On 23, 24 and 25 September 1998 Lloyd J heard the application for interlocutory relief. His Honour concluded that if the evidence at the final hearing remained the same as it was at that time, then the applicants will not have satisfied him they are likely to succeed in the claim that the respondents have infringed or threatened to infringe any of the statutory provisions relied upon by the applicants. Lloyd J was of the view that the applicants had not demonstrated there was a serious question to be tried or that the applicants had made out a prima facie case in the sense explained by Mason CJ in Castlemaine Tooheys Ltd & Ors v State of South Australia (1986) 161 CLR 148 at 153. His Honour also dealt with the question of the balance of convenience and the worth of an undertaking as to damages offered by Mr Mundine.

An application in the Court of Appeal for interlocutory relief pending the hearing of an application for leave to appeal against the interlocutory judgment of Lloyd J was heard by Sheppard AJA on 14, 15 and 16 October 1998.

After giving some consideration to the written judgment delivered by Lloyd J his Honour, Sheppard AJA, made the following observations on 15 October 1998:- It follows that I have two problems, I think, with his Honour's judgment. I think he has given insufficient attention to the fact that there is a stark conflict in the evidence about the problems that exist in relation to relics, particularly the scarred trees, but that may not be of great significance in the light of the undertaking that has been given. As I have said, I think that there must be a question whether the development consent envisages the clearing of so much land for the purpose of reconstructing the road and I think there is a problem in relation to the way his Honour exercised his discretion in connection with the balance of convenience because of his omission to consider the problems which the claimants have along with the problems which the first and second opponents have.

Sheppard AJA then indicated that he should consider imposing a restraint until the hearing of the application for leave to appeal, having the effect of reducing the area which may be cleared to 100 metres on either side of the delineated road in the plan. The respondents were given an opportunity to bring further evidence in that respect on the following day.

Overnight Mr Ireland, the solicitor for the respondents, obtained instructions to give an undertaking not to clear beyond 100 metres distance from the new Timbarra road outside ML 1386. The undertaking was accepted by the Court notwithstanding the objection of the applicants.

The undertaking was renewed on 4 November 1998 when the application for leave to appeal was stood over to 10 March 1999.

On 10 March 1999 the proceedings were again stood over until 1 December 1999 pending the trial of the proceedings in this Court.

On 8 October 1998 Pearlman J heard argument in relation to a Notice of Motion by the respondents to strike out part of the Amended Application Class 4. Further notices of motion seeking orders for access to the property and to set aside subpoenas were adjourned until judgment was delivered on the first Notice of Motion.

In a judgment delivered on 29 October 1998 Pearlman J struck out par 3, par 7 and par 8 of the Amended Application Class 4.

On 4 November 1998 the Chief Judge made orders granting access to Timbarra Road, on terms. On that day a further Notice of Motion by the applicants seeking expedition was opposed by the respondents and dismissed. A third Notice of Motion filed by the respondents seeking an order to bar the applicants' representative, Mr Oshlack, from further appearing in the proceedings was dismissed. Directions in relation to the filing and service of affidavits were made.

On 10 November 1998 access to documents produced on subpoena was granted, subject to terms. This appears to conflict with the finding of Lloyd J at p 6 of his judgment delivered on 5 March 1998 in Matter No. 40243 of 1998. There is no record of the application for access referred to by his Honour as having been dealt with on that day. The discrepancy is not relevant for present purposes.

On 16 December 1998 the Chief Judge made a further order for access to Timbarra Road and land cleared adjacent and ancillary to the road reserve (but not to ML 1386) for two nights and two days during January 1999.

The inspections were undertaken by the applicants' consultant, David Milledge, between 27 and 29 January 1999.

Further subpoenas were returned on 28 January 1999 and leave was granted to inspect documents.

On 1 March 1999 the applicants filed a Notice of Motion returnable 5 March 1999 seeking an order joining a sixth respondent and also an order granting further access to David Milledge.

On 5 March 1999 the respondents filed in Court the Notice of Motion moving the Court for an order that the applicants provide security for costs of the first, second and fifth respondents in the sum of $20000 or such other sum as the Court thinks fit. This Notice of Motion was set down for hearing on 23 March. The applicants' Notice of Motion was stood over to the same date.

On 23 March 1999 I directed that the respondents' Notice of Motion be dealt with first for the reason that if an order for security for costs was made, the other Notice of Motion would have to be stood over until security is provided.

It is the respondents' submission that after 16 December 1998 the proceedings became dormant thereby justifying the present application. They say in that respect the Notice of Motion was filed promptly.

I believe it is significant to note that on 5 March 1999 in proceedings 40243 of 1998 Lloyd J made an order requiring the applicants to give security for the costs of the first, second and third respondents in the sum of $20000. The Notice of Motion by the respondents in these proceedings seeking the same order was filed in Court one week later.

It is also pertinent that between 16 December 1998 and the end of January 1999 Mr Milledge carried out an inspection of the property over three days. By affidavit dated 26 February 1999 filed on 1 March 1999 and by further affidavit bearing date of 20 March 1999 although filed in the Court on 19 March 1999 Mr Milledge deposed as to matters relating to his inspection.

Accordingly, after 16 December 1998, the applicants appear to have actively pursued further evidence and produced it.

My understanding of the adjourned Notice of Motion is that it seeks an order to join the owner of land adjacent to the road reserve as a sixth respondent for the purpose of obtaining a right to inspect that person's land. It also seeks a grant of further access to Mr Milledge for a 48 hour period to travel on Timbarra Road in order to inspect any clearing made in conjunction with road works outside the road reserve or used for the purpose of stockpiling and burning of timber and surrounding habitat on land adjoining the road reserve. The original Notice of Motion filed by the applicants on 1 March 1999 has been amended by an Amended Notice of Motion filed on 12 March 1999 seeking a further order "that the Applicants file the affidavit of Mr. Milledge for trial 14 days after completing the inspection".

The hearing before Lloyd J in Matter 40243 of 1998 was heard over three days commencing 18 February 1999.

It is relevant to reflect upon what motivated the respondents to delay making an application for security for costs in these proceedings in circumstances where they had firstly formed the view they were entitled to do so in Matter 40243 of 1998 at least before 18 February 1999. This was during the critical period when it is now alleged the applicant had allowed these proceedings to become dormant.

Admittedly the timetable for the filing and service of affidavits set by the Chief Judge on 4 November 1998 has not been complied with. Nevertheless I infer that the application made on 16 December 1998 to allow Mr Milledge access to Timbarra Road is in part, at least, an explanation for the default.

Notwithstanding the failure to comply with the directions by the Chief Judge, I am not satisfied that the applicants have been acting in a dilatory manner in regard to the conduct of this matter since 16 December 1998, or any other date.

It does not lie well with the respondents to complain about alleged delay on the part of the applicants when they opposed the applicants' application for expedition dealt with by the Chief Judge on 4 November 1998.

The respondent, Ross Mining NL, was a party to proceedings 40295 of 1997 when the applicants answered interrogatories directed to their financial position. The answers to interrogatories were given on 24 February 1998. The respondents, including Ross Mining NL, rely on those answers to interrogatories to support a claim of impecuniosity and to establish that there is a reasonable expectation the applicants will not be in a position to meet any order for costs if made against them. The respondents, or at least the first respondent, have therefore known since before these proceedings commenced that the financial position of each of the applicants was parlous.

The respondents also rely on the fact that a costs order made against the applicants in proceedings 40295 of 1997 on 2 June 1998 remains unsatisfied to assert that they should not be exposed to incurring further costs while the payment of costs outstanding in earlier proceedings remains unresolved. Again, when these proceedings were commenced on 21 August 1998, the respondents were already aware of that exposure.

Between 21 August 1998 and the present the applicants have been allowed to proceed with this litigation without any threat that the respondents would be seeking an order for security for costs. The process has included a number of applications for interlocutory relief in chambers, in open Court and in the Court of Appeal.

The respondents were aware when those matters were dealt with that any undertaking as to damages offered by Mr Mundine would have no substance.

The applicants were allowed, in the meantime, to incur the cost of gathering evidence, including retaining consultants and arranging for inspections of the property. The fact that the applicants are represented by Mr Alan Oshlack as agent without legal representations does not discount the actual value of the time, personal inconvenience and attendant expenses incurred in the conduct of the proceedings so far.

It has been open from the outset for the respondents to seek the order they now seek and yet they have desisted from doing so until the last few weeks.

2. Strength and bona fides of the applicants' case 62. The primary submission made by the respondents is that the judgment by Lloyd J when he refused interlocutory relief discloses that the applicants' case is unlikely to succeed if the evidence remains in the same state. Accepting that this may be so in respect of the status of the claimed Aboriginal relics and notwithstanding the obiter remarks by Sheppard AJA in regard to the findings by Lloyd J, the submission ignores the evidence accumulated since in regard to the alleged threat to the habitat of endangered species and the extent of clearing undertaken without the relevant approval.

It is a general rule that the Court should proceed on the basis that a claim is bona fide with a reasonable prospect of success if it is prima facie regular on its face and discloses a course of action (Beazley J in Cable at 197).

The evidence of Mr Milledge has not been answered and therefore, for present purposes, must be taken as unchallenged.

The issues in the proceedings go beyond the dispute in regard to the status of the five scarred trees and the stone arrangement identified by Miss Davies and dealt with at some length by Lloyd J in his judgment on 25 September 1998.

Mr Ireland refers to the three affidavits now sworn by David Milledge and asserts that much of the material is irrelevant and takes the evidence no further than that considered by Lloyd J in September last. Nevertheless there appears to be a real issue between the parties in relation to the identity of land covered by the consent and approval already given in accordance with the EPA Act. These are evidentiary issues which cannot be resolved at this stage without a detailed examination of the material lodged in support of the application for consent and approval. The Court has been taken to extracts from this material but is not in a position to make an informed judgment.

Mr Ireland, who was a witness at the hearing as well as the respondents' legal representative, left the Court in real doubt about the continued existence of certain trees relied upon by the applicants as being Aboriginal relics and which may or may not have been the subject of the undertakings given to Bignold J. It is not practical to resolve that issue even to the extent permissible at this stage of the proceedings.

I am not therefore prepared to find that given the state of the evidence at this time, the Court can be satisfied that the applicants' case remains as weak as that found by Lloyd J.

The claim is prima facie regular on its face, particularly having regard to the outcome of the contested hearing before the Chief Judge when the first and second respondents asserted that the claims and issues set out in par 1, par 2, par 3, par 7, par 8, par 9 and par 12 of the applicants' Amended Application Class 4 should be struck out. Her Honour only agreed to strike out par 3, par 7 and par 8 because they were precluded by the operation of the rule of res judicata as the cause of action had merged in the judgment delivered by me in proceedings 40295 of 1997. It is true and relevant that her Honour was not asked to give consideration to the strength of the claim in the paragraphs which she refused to preclude. It is relevant nevertheless to the question of security for costs that the respondents did not seek an order at that time, nor were they heard to assert that the claims should be summarily dismissed for any reason other than issue estoppel, res judicata or abuse of process.

The opportunity was also available to make the present application when the respondents sought to have Alan Oshlack barred from representing the applicants on 4 November 1998.

The Court is not satisfied that there is sufficient evidence to set aside the bona fides of the claim or to deny a reasonable prospect of success. There are real and relevant issues that remain to be decided.

The observations by Toohey J in Caruso Australia Pty Ltd v Portec (Australia) Pty Ltd (1984) 1 FCR 311 at 313 are important in regard to this issue. A material consideration is the probability of success of the application itself. Where the facts are complex as they are here, it is particularly difficult for the court to express a view on this aspect. … I am satisfied that the claim is made bona fide and that it is a relevant consideration. M.A. Productions Pty Ltd v Austarama Television Pty Ltd (1982) 1 A.C.L.C. 404 ; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 1 A.C.L.C. 521.

The respondents rely on the findings of Lloyd J on 5 March 1999 in proceedings 40243 of 1998 that the respondents have instituted proceedings in a habitual and persistent matter and have instituted some proceedings without reasonable grounds to direct this Court to a finding that these proceedings have been instituted for a collateral purpose of causing disruption and inconvenience to the respondents and to stop the operation of the mine.

The decision by Lloyd J was in the context of s 70(2) of the Land and Environment Court Act as to whether the applicants are vexatious litigants. It is not open to connect that finding to his ultimate decision to make an order for security for costs other than, as his Honour indicated, to test the genuineness of the applicants' claim. The decision by Lloyd J is clearly distinguishable and the doctrine of issue estoppel has no application.

Regardless of the doctrine of issue estoppel, the respondents nevertheless rely on the evidence adduced by the respondents to demonstrate a collateral purpose as follows:-

a) A comment by Alan Oshlack that "we will not stop litigation until Ross stops mining at Timbarra".

b) The inference available from the course of these proceedings and the mass illegal protests at Timbarra necessitating injunction by the Mining Warden against 68 persons, including Alan Oshlack and David Mundine.

The legislation upon which the applicants rely expressly contemplates that persons who might not otherwise have standing are entitled to bring proceedings in this Court to allege a breach of the statute.

It is difficult to understand why the applicants, simply by being opposed to the mine, must thereby be regarded as acting mala fide only because they take action to ensure compliance with statutory obligations. That is the very purpose for which such proceedings are properly designed. I cannot be satisfied that the applicants are pursuing an ulterior purpose unrelated to the subject matter of the litigation. A course of opposing the operation of the mine is entirely consistent with taking action to ensure that it is conducted lawfully.

Although Lloyd J came to a different conclusion in proceedings 40243 of 1998, his Honour was there considering a different application based on different legislation including the Water Act. His Honour was also being asked to consider those proceedings as part of a series of litigation for the purpose of deciding whether the applicants should be declared vexatious. The order for security for costs was seen by his Honour as a test of the applicants' resolve.

The applicants have already been partially successful in these proceedings by soliciting undertakings given to Bignold J and the Court of Appeal. Although not encouraging a belief that there were good prospects of success, Sheppard AJA did not appear to regard the case so weak as to be treated as hopeless.

3. Whether the application for security is oppressive 80. Mr Ireland admitted in cross examination that his clients did not want the matter to come to trial and that he was instructed to succeed in the best way he could. That included making it difficult for the applicants. In response to a suggestion that the intention of the application was to stifle the litigation, Mr Ireland agreed that it was in the respondents' interests to ensure that the litigation ends as soon as possible.

It is an unusual situation for the legal representative conducting the case on behalf of a party to be a primary witness and to be exposed to cross examination. The perils of such a course are confirmed in this case as the Court was able to draw its own conclusions from the answers to questions in cross examination as to the real intention behind almost every forensic step taken in these proceedings by the respondents.

Following that cross examination, the Court is satisfied that the primary purpose of seeking an order for security for costs is an attempt to bring the litigation to a premature conclusion before the real issues can be litigated.

The respondents have attempted at every turn to thwart the efforts of the applicants to prepare for trial and to obtain relief.

Mr Ireland gave evidence that his understanding was that the mining project under challenge involved an investment of $20 million. In that context, the claim for security in the sum of $20000 appears to be inconsequential notwithstanding Mr Ireland's protest that all expenditure by a public company must be regarded as significant and the evidence that the estimate of future costs is approximately that amount.

The primary submission of the applicants is that to award security for costs will frustrate their right to litigate.

The only evidence before the Court is that the applicants are bereft of any relevant means. There can be no doubt that if they are left to rely on their own financial resources, an order for security for costs will inevitably restrain them from taking any further part in the proceedings.

I have already referred to the evidence given by Mr Ireland which disclosed an intention on the part of the respondents to take whatever action is necessary to bring the proceedings to an end before a hearing on the merits. The present application is, in my view, no more than a forensic device for the furtherance of that purpose.

In that context an order for security for costs will clearly frustrate the applicants' right to litigate their claim because of their financial condition. As Megarry V-C said in Pearson v Naydler (1977) 1 WLR 899 at 902, the basic rule that a natural person who sues will not be ordered to give security for costs, however poor they are, is ancient and well established .. the power to require security for costs ought not to be used so as to bar even the poorest man from the courts.

The decision to bring the application for the order immediately after Lloyd J delivered judgment on 5 March 1999 in proceedings 40243 of 1998 has overtones of an opportunistic manoeuvre to stifle these proceedings.

4. Whether the applicants are acting in a mere nominal capacity 90. The respondents primarily rely on Pt 53 r 2(1)(b) which states:-

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.

I have already found there is uncontradicted evidence before the Court that the applicants are impecunious and without the means to meet a costs order by payment from their own resources.

The applicants do not concede they are suing for the benefit of some other person except in the context of the open standing provisions of s 123 which recognise the public interest in restraining breaches of the EPA Act.

As there was before Lloyd J, there is evidence before me that the applicants have an interest as native title claimants over the subject land. They are clearly acting in a representative capacity in those claims.

Lloyd J concluded at pages 7 - 9 of his judgment on 5 March 1999 that all of the proceedings referred to by him, including these proceedings, were being brought to protect the communal native title interests. This finding should be followed and adopted in this matter.

Regardless of the doctrine of issue estoppel, the same conclusion would follow from the evidence before the Court in these proceedings.

Recognising that there may be a body of persons standing behind the applicants and that the applicants are representing the interests of those other persons, there is nevertheless no evidence which persuades me that if an order for security for costs is made, those other persons will be in any better position than the applicants themselves to provide security.

I have no reason to change my views about the nature of public interest litigation expressed in a judgment on costs in Donnelly and Mundine v Tenterfield Shire Council & Ors (unreported 40295 of 1997 9 July 1998).

Although these proceedings are an endeavour to restrain or remedy the breach of statutory obligations, they cannot, at this stage, based on the evidence presently available, be characterised as being litigation in the public interest.

I cannot accept the broad submission made by Mr Ireland from the bar table that they are substantially brought either to protect private native title rights or to inconvenience the respondents and that procedurally they are to be characterised as an abuse of court procedures and, to date, a futile expenditure of court time.

There is some public interest element in seeking to restrain or remedy a breach of a statute and, in litigation of that kind, it is relevant for the Court to take the nature of the proceedings into account when considering whether to make an order for security for costs. The Court should take into account that the applicants may represent a wider interest than the applicants' own particular private interests.

In the exercise of the Court's undoubted, wide and unfettered discretion, I am satisfied on balance that the weight of the evidence is not such that an order for security for costs should be made. I have had particular regard to the oppressive result of such an order upon the applicants and the stage at which the respondents have seen fit to move the Court for the order.

It is appropriate that the outstanding Notice of Motion seeking to join a sixth respondent and seeking further orders for access to property should be stood over to the Duty Judge's list for further directions.

1. Notice of Motion seeking an order for security for costs dismissed.

2. Amended Notice of Motion by the applicants dated 12 March 1999 stood over for directions before the Duty Judge 9.30 am 1 April 1999.

I hereby certify that the preceding 103 paragraphs are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

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