Duncan v Moore & Ors

All four parties were candidates for the NSW Legislative Assembly electorate/seat of Bligh in the last State election, held on Saturday 27 March 1999.

Elections in NSW are conducted under the auspices and provisions of the Parliamentary Electorates & Elections Act 1912 (" PEEA ").

The Applicant (" Duncan ") and the First Respondent (" Moore ") were Independent candidates. Duncan is a practising barrister and Moore was and remains the sitting member for Bligh.

The Second Respondent (" Smith ") was an endorsed candidate for/of the Australian Labor Party, and is Mayor of South Sydney Council.

The Third Respondent (" Fussell "), an endorsed candidate for/of the Liberal Party of Australia, has not participated in any hearings, his solicitor having appeared before Pearlman J in open court on 23 March 1999 to inform her that Fussell would abide by any order of the court.

Duncan believes the erection of political campaign posters on what the community knows variously as telegraph poles, lamp posts or power poles (to which I will refer as " power poles ") is illegal.

He says that, as a barrister, he cannot afford to be dealt with for any illegality, and is, therefore, at a disadvantage in any electoral contest against the 3 Respondents, some or all of whom could be shown by admissible evidence to have erected such posters, or at least to have had the benefit of posters having been erected on their behalf, albeit in breach of the law.

Duncan chose to bring these proceedings in this court, on the basis that environmental harm flows from both the erection of posters and the failure to remove them completely after their supposedly temporary display during election periods.

In resisting these applications for orders for costs against him, Duncan appeared for himself and relied upon four affidavits he had sworn and filed in the substantive proceedings, dated 18 March, 23 March and 18 May 1999, and 21 February 2000.

The relevant contents of those affidavits, and the salient facts he highlighted from them, with little or no objection from representatives of Smith and Moore, may be summarised as follows.

The State Electoral Office of New South Wales published at some time prior to the 1999 State Election an undated brochure or handbook entitled " Guide to Candidates at State Elections " ( Exhibit A3 ), p 17 of which deals with the question of posters, partly in the following terms: Posters of any size may not be exhibited on any property: · belonging to the Crown; · belonging to a statutory body representing the Crown; · belonging to a local authority; or · being a building, vehicle, vessel, hoarding, fence or in or on any movable or immovable object in any place. From the foregoing it will be seen that it is unlawful to attach posters to electric light poles. Posters cannot be exhibited on unoccupied premises unless permission has first been obtained from the owner. The Returning Officer, his appointee or any member of the police force may remove illegal posters, as mentioned above, whereupon they will be destroyed. As a general rule, when the Returning Officer receives a complaint concerning an illegal poster the candidate or party will be advised and requested to arrange for its removal. In the absence of removal the Returning Officer may cause the poster to be removed and destroyed.

Prior to the closing weeks of the March 1999 election campaign, Duncan observed posters of candidates Moore and Smith " affixed to power poles ". He spoke to the Divisional Returning Officer for the electorate of Bligh, who pleaded to him substantial inconvenience if directed by the Electoral Commissioner to act on any complaint Duncan might make in regard to posters. Duncan decided not to approach the Electoral Commissioner for a relevant direction to be given to the Returning Officer.

Duncan then made enquiries of Woollahra Council, which, like South Sydney Council, covers some of the electorate of Bligh, as to whether " any planning permission or development consent " had been obtained for the erection or affixing of posters on power poles (to which I will refer generally as " erection(s) "). It is apparent from the evidence that no such consents were obtained, and that Duncan received some information from that Council that development consent is/was, in fact, required for such erections.

On 12 March 1999 Duncan faxed to Smith and Fussell, and on 13 March delivered to Moore, letters which, inter alia, threatened proceedings in this court if they failed either to remove the posters, or to satisfy him that they had planning permission for their erection.

On 17 March 1999 , having had no reply, Duncan faxed to the three of them another letter, advising of his intended approach to the court that afternoon. In that letter he said in that context: This could have been avoided by a civilised reply agreeing to remove your campaign posters without the need for the Court to be involved. At this stage, without prejudice to the question of costs, I am prepared to accept undertakings to the Court that you will cause the posters affixed to lampposts throughout the electorate to be removed by Friday morning.

Later that day Duncan faxed them again regarding his intention to approach the court sometime on 18 March 1999.

On 18 March 1999 , Duncan called on the Chief Judge, I as Duty Judge having disqualified myself from hearing the substantive proceedings.

The class 4 application he filed on 18 March 1999 sought the following substantive relief: 1. An order that leave be granted to the applicant to bring this application pursuant to s 25 of the Environmental Offences and Penalties Act 1989. 2. A declaration that the affixing of campaign posters to powerpoles within the boundaries of the electorate of Bligh (' the relevant powerpoles' ) by the Respondents, their servants or agents or unnamed persons on their behalf ( 'the affixation' ) is in breach of the provisions of the Environmental Planning and Assessment Act. 3. Further or in the alternative, a declaration that the affixation is a breach of s 151B(2A) of the Parliamentary Electorates and Elections Act 1912. 4. An order restraining the Respondents, their servants or agents from affixing campaign posters to the relevant powerpoles. 5. An order that the Respondents, their servants or agents remove the posters currently affixed to the relevant powerpoles.

Duncan's application sought also the following interlocutory relief: 1. An order that, pending further order, the Respondents, their servants or agents, be restrained from affixing or causing to be affixed campaign posters on the relevant powerpoles. 2. An order that the Respondents remove or cause to be removed the posters currently affixed to the relevant powerpoles. 3. An order that the order in paragraph 2 be effected no later than 9 am on Monday 22 March 1999.

The Chief Judge, in chambers and on an ex parte basis, granted Duncan both leave to bring his class 4 application pursuant to s 25 of the Environmental Offences & Penalties Act 1989 (" EOP Act "), and an interlocutory injunction in accordance with prayer 1 set out in the last paragraph of this judgment.

Pearlman J's order, the class 4 application and Duncan's affidavit dated 18 March 1999 were communicated to all three Respondents by about midday on Sunday 21 March 1999. The details of faxing, DX'ing, and personal service are set out in Duncan's affidavit dated 23 March 1999.

All four parties were represented when the application was returnable before the Chief Judge in open court on 23 March 1999 . As noted above, Fussell, by his solicitor, submitted.

Duncan put his case to Pearlman J on two bases.

Firstly, he claimed that the erection of posters was an activity requiring consent, and, in the absence of consent, it was in breach of s 76A of the EP&A Act, entitling him to bring proceedings under s 123 of that Act. Pearlman J did " not think that development consent is required under the Woollahra LEP for the affixing of temporary signs of a political nature such as the campaign posters in question here" (see pars 8-13 of Her Honour's judgment), and found that "it is not necessary under the South Sydney LEP for development consent to be obtained " (see pars 14-19).

Secondly, Duncan relied (see pars 21ff) on s 25 of the EOP Act which relevantly provides: (1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of this or any other Act or any statutory rule under an Act if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment. (2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach). (3) Any such proceedings may only be brought with the leave of the Court. Before granting leave, the Court must be satisfied that: (a) the proceedings are not an abuse of the process of the Court, and (b) there is a real or significant likelihood that the requirements for the making of an order under this section will be satisfied, and (c) it is in the public interest that the proceedings should be brought. (4) … (5) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed. … [Section 25(4) requires the Environment Protection Authority to be served with any such application, and on 22 March 1999 the Authority wrote to Duncan declining to become a party to these proceedings].

Duncan claimed that s 25 applied to his case because affixing posters to power poles breached s 151B(2A) of the PEEA, which he argued was " any other Act " within s 25, and which relevantly provided: A person shall not post up, or permit or cause to be posted up, a poster: (a) on or within any premises occupied or used by, or under the control or management of: (i) the Crown, any instrumentality or agency of the Crown, or any statutory body representing the Crown or any other body prescribed by the regulations as a statutory body representing the Crown, or (ii) any local authority…

Duncan argued that some of the posters were falling down, as a result of wind damage and the like, and thereby constituted a stormwater pollution hazard.

It was argued on Smith's behalf that the relevant Part of the PEEA was a code " exclusively within the jurisdiction of the Court of Disputed Returns " (pars 24ff).

After hearing argument, Her Honour set aside the order granting leave, discharged the interlocutory injunction prohibiting further erections, and declined to make any order for the removal of any posters already erected. The proceedings were stood over for callover before the Registrar on 20 April 1999.

In her judgment Pearlman J expressed (par 25) " serious misgivings" about, but went on to accept, Smith's argument, holding " that the issue of the affixing of the posters to the power poles is an issue which is exclusively within the jurisdiction of the Court of Disputed Returns". (par 26) [emphasis added].

Her Honour went on to say: 27. The second reason why I have misgivings is that the conclusion I have reached requires the reading down of s 25(1) of the EOP Act because that section refers in very wide terms to a breach of "any other Act" and the Parliamentary Electorates and Election Act 1912 is "any other Act". And I accept, because it was unchallenged and there is no real evidence to the contrary, that the falling down and deterioration of the posters is causing or is likely to cause harm to the environment. However, s 3 of the EOP Act provides that: … the principal object of the Act is to supplement other laws which protect the environment from pollution: (a) by creating additional offences …, (b) by enabling the imposition of penalties …, (c) by enabling courts to make orders restricting the disposition of property, or other dealings with property … and (d) by punishing contravention of those other laws and … (e) by establishing common procedures for the enforcement of other laws. 28. Section 25 must be read in that context and the argument that s 25 is not intended to infringe upon the electoral process , defined as widely as it was by Powell J in McDonald v Keats [[1981] 2 NSWLR 268], seems to me to have force and I accept it. [emphasis added].

Because of her misgivings, Pearlman J went on to " deal briefly with the other questions which will arise if my conclusion is wrong " (par 29).

She then dealt (pars 30ff) with the question of the leave she had granted under EOP Act s 25(1), saying:

31. … the leave was granted ex parte, it was granted in circumstances when the question of leave being granted under s 25(3) had not been brought to the notice of the respondents as an issue , and that accordingly they did not have an opportunity to direct their minds to the question and they were therefore denied procedural fairness. 32. Mr Duncan was very careful to contact all the respondents several times, as the letters attached to his affidavit demonstrate, but although he indicated in those letters that he would approach this Court and although he repeatedly urged the respondents to seek legal advice, he did not indicate that he was seeking leave under s 25(3). 33. I think that it is appropriate, where the order granting leave has been made ex parte without express notice to the respondents , and where they have now had an opportunity to consider their position and to make submissions in relation to it, that I should set it aside and consider it afresh. So far as it is necessary for the purpose of today's judgment, that is if I am wrong in my first finding that there is no jurisdiction to entertain the issue under s 25(1), then I do so set aside the leave I granted on 18 March 1999. 34. The question then is whether the preconditions for the granting of leave that are set out in s 25(3) are met. I do not think they have been met. 35. Subsection (a) requires that the proceedings are not an abuse of the process of the Court. I mean no disrespect to Mr Duncan, whom I think has argued this case very well and has brought to the attention of this Court, indeed probably now to the public, the effect of s 25(1) and its consequences, when I say that I think that these proceedings are in terms of s 25(3) an abuse of the process of the Court. They are an abuse of the process of the Court because they are coloured by the election. Mr Duncan is a candidate. There is no evidence of serious environmental harm. There is a collateral purpose behind the proceedings which is a political one. And it seems to me, in those circumstances, that these are not proceedings which should properly be given leave within s 25 . 36. Even if, however, I was wrong on that point and there was a serious question to be tried in relation to s 25(1), then I think the balance of convenience favours the respondents and not the applicant. There is no evidence of serious environmental harm. …. 37. There are only four days to go to this election. It seems to me, in weighing up the balance of convenience, that the convenience to the candidates having put up their posters and leaving them there for the next four days outweighs the environmental harm which I have found to exist and outweighs the breach of the Parliamentary Electorates and Election (sic) Act 1912, from which that harm flows. In those circumstances I say that, if there is a serious question to be tried on the issue that arises under s 25(1), the balance of convenience does not favour granting of an injunction. … 39. The effect of making no interlocutory injunction at this stage leaves the proceedings on foot to be disposed of as substantive proceedings at some time which is convenient to the Court. There have been no submissions put to me on the question of costs. In circumstances where the substantive proceedings have still to be heard, the appropriate order to make in relation to costs is merely to reserve the question of costs. [emphasis added].

I should interpolate in this chronology, at this point, that Duncan expressed from the Bar table, during the costs hearing, his continued very serious concern regarding Her Honour's comments imputing to him (par 35) " a collateral purpose " which constituted in the circumstances " an abuse of the process of the Court ". As a member of the legal profession, Duncan is particularly concerned that such an allegation against him remains extant.

It would appear from the court file that Her Honour was invited to make such a finding by the written submissions lodged with the court on 23 March 1999 on Smith's behalf, on the basis that, given that the actual term " abuse of the process of the court " is used in s 25 of the EOP Act, Duncan should not have chosen the Land & Environment Court, rather than the Court of Dispute Returns, in which to pursue matters regarding alleged breaches of the PEEA. Pearlman J used the term " abuse … " only, and expressly, " in terms of s 25(3) ".

On 31 March 1999 , relevantly after the election, in which the seat of Bligh had been retained by Moore, Duncan wrote to Moore's solicitors (in reply to a letter from them dated 24 March which is not in evidence), regarding the outstanding aspects of the proceedings saying, inter alia: Unless s 151B is repealed, I shall continue to press for the removal of posters on powerpoles and to prevent their future erection. Given that your client not only is prepared flagrantly to breach the law but also instructs attorneys to oppose in Court a legitimate attempt to enforce the law in order to maintain her breach for pure political advantage, it will be my submission that your client is not entitled to costs…. Once again, I make an open offer to settle this matter. If your client is prepared to give undertakings to the Court: (a) that any of her campaign posters affixed in contravention of s 151B will be removed forthwith; and (b) that she will not in future contravene that section or otherwise erect campaign material other than with the requisite development consent; I am prepared to have the proceedings dismissed and bear my own costs.

The poll in Bligh was officially declared on 9 April 1999 , and Duncan has sworn that the Divisional Returning Officer said, at that declaration, words to the following effect: Before I declare the poll, I just want to say how disappointed I am that candidates for public office continue to break the law by putting posters on powerpoles. It sets a very bad example for the community…

Correspondence between Duncan and solicitors for the various Respondents, particularly Moore, continued during April and May. Of particular relevance is a lengthy letter dated 18 April 1999 in which, inter alia, Duncan makes the following comments: … I assume your letter means that your client denies that: (a) erection of her posters requires development consent within the terms of the Woollahra LEP; (b) the erection of those posters is a breach of s 151 B of the Electoral Act; (c) the posters were erected more than 28 days before 27 March 1999; and (d) she had knowledge of the above. If that is the case, your client puts me to strict proof of each of those elements. That escalates my costs. I shall seek those costs on an indemnity basis at full professional freight. My current charge-out rate is $250 per hour or $2,500 per day. Your Mr Roberts will be able to confirm for you the astonishing value for money my services represent. … I intend to obtain an order which will mean that your client will never again be allowed to place posters on powerpoles. I intend that the precedent set by this case will be applicable throughout New South Wales. I believe the public will be grateful for my efforts. I have given your client ample opportunity to settle this matter at no cost to her and she has refused. She will now garner the full consequences of that refusal. In that regard, certain statements in your letter of 14 April call for response. First I note that your client continues to refuse to give undertakings to obey the law - an interesting position for a member-elect of the Legislative Assembly. I reserve my position in relation to bringing that to the attention of the Speaker prior to her swearing-in. Your client still has posters or remnants of posters attached to powerpoles from one side of the electorate to the other….

In a letter to the solicitors for Smith on 18 April 1999, Duncan said, inter alia, the following: …I was prepared to release him from further involvement in the proceedings subject to the removal of his campaign posters. I am dismayed to see that his posters (or in some cases remnants of them) remain affixed to powerpoles widely throughout the electorate. They are an eyesore and, three weeks after the election, an insult. Further, they require development consent under the Woollahra LEP. I am no longer prepared to be conciliatory. Your client is in blatant breach of the law. I shall pursue him for it and seek my costs on an indemnity basis. … I intend to obtain an order which will mean that your client and his party will never again be allowed to place posters on powerpoles. I intend that the precedent set by this case will be applicable throughout New South Wales. I believe the public will be grateful for my efforts. I have given your client ample opportunity to settle this matter at no cost to him and he has refused. He will now garner the full consequences of that refusal.

After several directions hearings before the Registrar, Duncan filed, for the first time, Points of Claim , on 19 May 1999 .

Those Points of Claim relevantly " pleaded " that the erection of the posters (put shortly) breached s 151B(2A) of the PEEA (pars 4-5), s 65 of the Electricity Supply Act 1995 (" ESA ") [par 6], and Woollahra LEP (par 7), and that such erection caused environmental harm within the meaning of the EOP Act (par 14).

Section 65 of the ESA had not previously been raised in the proceedings and relevantly provides as follows: A person must not interfere with a network operator's electricity works unless authorised to do so by the network operator .

Duncan sought the following relief in the Points of Claim dated 19 May 1999: 1. An order that leave be granted to the applicant to bring this application pursuant to s 25 of the Environmental Offences and Penalties Act 1989 in regard to breaches of the Parliamentary Electorates and Elections Act and the Electricity Supply Act. 2. A declaration that the erection of posters being campaign posters for political purposes to telegraph poles, light poles and or powerpoles within the boundaries of the electorate of Bligh ('the erection') by the respondents, their servants or agents or unnamed persons on their behalf requires development consent under the Woollahra Local Environmental Plan. 3. Further or in the alternative, a declaration that the erection is a breach of s 65 Electricity Supply Act. 4. Further or in the alternative, a declaration that the erection is a breach of s 151B(2A) of the Parliamentary Electorates and Elections Act. 5. An order restraining the respondents, their servants or agents or any persons on their behalf from erecting posters (within the meaning of s 151B of the Parliamentary Electorates and Elections Act) in contravention of any of the Parliamentary Electorates and Elections Act, the Electricity Supply Act or the Woollahra Local Environment Plan on powerpoles within the boundaries from time to time of the electorate of Bligh. 6. An order that the respondents remove the posters still affixed to powerpoles within the boundaries of the electorate of Bligh. 7. Indemnity costs. 8. Such further or other order as the Court deems fit.

On 25 May 1999 the Registrar directed that Duncan file Amended Points of Claim within seven days, and he did so on 31 May 1999 . The amendments he made to the 19 May version were clearly identified, and the primary " pleadings " asserted breaches of the PEEA, the ESA and the LEP, and environmental harm, remained in the Points of Claim. All references to s 25 of the EOP Act were deleted, and minor amendments included " closing " some time periods.

The section on relief sought was altered to read as follows: 1. A declaration that the erection of posters being campaign posters for political purposes to telegraph poles, light poles and/or powerpoles within the boundaries of the electorate of Bligh ('the erection') by the respondents, their servants or agents or unnamed persons on their behalf requires development consent under the Woollahra Local Environmental Plan. 2. Further or in the alternative, a declaration that the erection is a breach of s 65 Electricity Supply Act. 3. Further or in the alternative, a declaration that the erection is a breach of s 151B(2A) of the Parliamentary Electorates and Elections Act. 4. An order restraining the respondents, their servants or agents or any persons on their behalf from erecting posters (within the meaning of s 151B of the Parliamentary Electorates and Elections Act) in contravention of any of the Parliamentary Electorates and Elections Act, the Electricity Supply Act or the Woollahra Local Environment Plan on powerpoles within the boundaries from time to time of the electorate of Bligh. 5. An order that the respondents remove the posters still affixed to powerpoles within the boundaries of the electorate of Bligh. 6. Indemnity costs. 7. Such further or other order as the Court deems fit.

The matter came before Talbot J, as Duty Judge, on 25 June 1999 to deal with a Notice of Motion which was filed on 21 June by Smith, and apparently supported by Moore, seeking the following relief: 1. That the proceedings be dismissed in relation to any claim for relief based on alleged breaches of s 65 of the Electricity Supply Act 1995 and s 151B(2A) of the Parliamentary Electorates and Elections Act 1912. 2. That the proceedings otherwise be stayed. 3. Alternatively, that within seven days the applicant file and serve points of claim setting out the grounds upon which he claims relief under s 123 of the Environmental Planning and Assessment Act 1979. 4. That the Applicant pay the second Respondents' costs of the motion on an indemnity basis. [emphasis added].

His Honour reserved his decision and published a judgment on 30 June 1999 , in which he found that this court lacked the necessary jurisdiction to grant the relief sought in respect of alleged breaches of the PEEA and/or ESA, and dismissed claims under those two Acts, " neither of which is a planning or environmental law specified in s 20(3) of the Land & Environment Court Act " (par 14), saying (par 42): The additional matters in respect of which the applicant seeks relief do not provide any basis for establishing the claim for relief in respect of the breach of the provisions of Woollahra LEP.

His Honour's judgment, therefore, dealt substantively only with par 1 of the Notice of Motion, and not at all with the questions of a stay of the proceedings, or (in terms) an order that Duncan file and serve Points of Claim setting out the grounds on which he claimed relief under s 123 of the EP&A Act. His Honour specifically reserved " any remaining questions arising out of the Notice of Motion " (par 53) and said in the " Conclusion " to his judgment: 49. However, the Court recognises that it may be open for the applicant to rely on the breaches of the statutes which are not a planning or environmental law in order to support a submission in opposition to an application by the respondents for the Court to exercise its discretion not to make any orders in the event that the breach of the provisions of Woollahra LEP is established. I am not therefore convinced that the Court is precluded from pronouncing a finding in respect of a breach of a statute which would not otherwise be within jurisdiction where it is no more than a step in the cause of action that is within jurisdiction. Whether or not it becomes necessary to finally determine that issue in these proceedings will depend how, and if, it arises at the final hearing. 50. The applicant is ordered to amend the Amended Points of Claim already filed by deleting the claims for relief in paragraphs 2 and 3 and the reference to s 151B of the Parliamentary Electorates and Elections Act as well as the Electricity Supply Act in paragraph 4. 51. The applicant has conceded that the narrowing of the claim has the consequence that the complaint regarding the affixing of campaign posters to power poles must be restricted to the area of the Council of Woollahra. This amendment must also be made in the Further Amended Points of Claim. [emphasis added].

The matter was sent back to the Registrar for callover and further directions.

The orders taken out, eventually on 21 July 1999, to reflect His Honour's decision of 30 June 1999 were couched in these terms: 1. The proceedings be dismissed in relation to any claim for relief based on alleged breaches of section 65 of the Electricity Supply Act 1995 and section 151B(2A) of the Parliamentary Electorates and Elections Act 1912. 2. Within seven (7) days the Applicant file and serve Further Amended Points of Claim which: (a) omits the claims for relief in paragraphs 2 and 3 of the Amended Points of Claim; (b) omits from paragraph 4 of the Amended Points of Claim reference to section 151B(2A) of the Parliamentary Electorates and Elections Act 1912 and section 65 of the Electricity Supply Act 1995; and (c) restricts the area in respect of which relief is sought to the area of the Council of Woollahra.

Duncan's Further amended Points of Claim were filed on 8 July 1999 , as ordered by Talbot J, and Duncan was still seeking therein, i.e. as at 8 July 1999, the following relief: 1. A declaration that the erection of posters being campaign posters for political purposes to telegraph poles, light poles and/or powerpoles within that part of the boundaries of the electorate of Bligh within the area of the Council of Woollahra ('the erection') by the Respondents, their servants or agents or unnamed persons on their behalf requires development consent under the Woollahra Local Environment Plan. 2. * 3. * 4. An order restraining the Respondents, their servants or agents or any persons on their behalf from erecting posters * in contravention of the * Woollahra Local Environment Plan on powerpoles within the boundaries from time to time of the electorate of Bligh. 5. An order that the Respondents remove the posters still affixed to powerpoles in the area of the Council of Woollahra within the boundaries of the electorate of Bligh. 6. Indemnity costs. 7. Such further or other order as the Court deems fit.

The further Amended Points of Claim of 8 July 1999 continue the following relevant assertions by Duncan regarding the erection of posters on powerpoles in the Electorate of Bligh: 5. The erection was and continues to be a contravention of s 151B (2A) of the Electoral Act. PARTICULARS 5.1 The powerpoles are under the control or management of an instrumentality or agency of the Crown and/or a statutory body representing the Crown; 5.2 The section prohibits the erection of posters on powerpoles. 6. The erection was and continues to be a contravention of s 65 of the Electricity Supply Act. PARTICULARS 6.1 The erection is an interference with electricity works within the meaning of that Act. 7. The erection was a contravention of the Woollahra Local Environmental Plan ('the WLEP') and continued to be so up to and including 16 May 1999. PARTICULARS 7.1 The erection requires development consent under clause 16 (2) and 25B(2) of the WLEP. 8. The third respondent, his servants or agents have erected posters on powerpoles within the electorate of Bligh ('the third Respondent's erections') and some of the third respondent's erections remained as at 16 May 1999. 9. The third respondent's erections are and continue to be a contravention of the Acts and planning instruments referred to in paragraphs 5 to 7 above. … 14. The posters cause environmental harm. PARTICULARS 14.1 they deteriorate over time; 14.2 they cause environmental harm to the visual amenity of the area in which they are erected; 14.3 they pollute the environment generally; 14.4 they restrict airflow around the powerpoles; and 14.5 they cause cost, expense and diminution in the assets of Energy Australia. 15. On a date unknown to the applicant, the Divisional Returning Officer for the seat of Bligh requested the second respondent to remove his posters erected on powerpoles in the electorate. PARTICULARS 15.1 A telephone conversation between John Arnold and an unnamed person on behalf of the second respondent. 16. On a date unknown to the applicant Woollarah (sic) Council requested the first respondent to remove her posters erected on powerpoles in the electorate. PARTICULARS 16.1 Particulars will be supplied after discovery. 17. The first and second respondents have refused or neglected to accede to the requests pleaded in paragraphs 16 and 17. (sic) PARTICULARS 17.1 As at 16 May 1999, posters or remnants of posters erected by or on behalf of the first and second respondents continued to be erected on powerpoles within the boundaries of the electorate of Bligh.

The proceedings came before me as the Duty Judge on 15 and 22 July 1999 .

Talbot J's orders had not been taken out in time for the hearing on 15 July 1999, but it was apparent to me that there were still outstanding several matters in Smith's Notice of Motion. In addition, Moore had on 9 July 1999 , put on a Notice of Motion seeking: 1. A Declaration that the questions remaining to be determined in the proceedings are hypothetical and otherwise of no utility and for those reasons the proceedings should be dismissed. 2. Orders that: (a) The Direction made 8 July 1999 requiring the First Respondent to file and serve Points of Defence on or before 15 July 1999 be vacated. (b) Paragraphs 5 and 6, of the Further Amended Points of Claim filed herein be struck out; and (c) Paragraphs 1 and 4 in the relief sought by the Applicant in the Further Amended Points of Claim filed herein be dismissed ; and (d) The proceedings otherwise be stayed. (e) The Applicant pay the First Respondent's costs of and incidental to this Notice of Motion on an indemnity basis. (f) The Applicant pay the First Respondent's costs of and incidental to these proceedings generally. (g) Alternatively, that within 7 days the Applicant file and serve Points of Claim setting out the grounds upon which he claims relief under Section 123 of the Environmental Planning and Assessment Act 1979 (NSW). (h) Such further or other Orders as this Honourable Court deems appropriate. [emphasis added].

When the matter came before me again on 22 July 1999 Smith filed in court an Amended Notice of Motion, which sought the following relief:

1. That the proceedings be dismissed in relation to any claim for relief based on alleged breaches of s 65 of the Electricity Supply Act 1995 and s 151B(2A) of the Parliamentary Electorates and Elections Act 1912. 1A. That the proceedings otherwise be dismissed. 2. Alternatively, that the proceedings otherwise be stayed . 3. Alternatively, that within seven days the applicant file and serve points of claim setting out the grounds upon which he claims relief under s 123 of the Environmental Planning and Assessment Act 1979. 4. That the applicant pay the second respondents' costs of the motion and all reserved costs on an indemnity basis. [some emphasis added].

60. On 22 July 1999 I made three orders: (i) I directed that the two Notices of Motion (Moore's of 9 July and Smith's of 22 July) be heard together, and that they be heard by Talbot J (I having taken the view that His Honour was effectively part-heard in the Smith motion). (ii) I referred the parties back to the Registrar for the setting of a hearing date before Talbot J; and (iii) I suspended until that hearing date the Registrar's directions that the Respondents file and serve Points of Defence .

61. Before passing on to the next key event in this chronology, I should note at this point that the Respondents were ordered by the Registrar on 25 May 1999 to file Points of Defence by 15 June 1999, and again on 8 July 1999 to file them by 15 July 1999. As noted above, on 22 July 1999 I suspended that direction until the date appointed for the further hearing before Talbot J. It should be further noted that no Points of Defence have ever been filed in these proceedings.

62. The matter resumed before Talbot J on 13 September 1999 , in order that His Honour could deal with the outstanding matters in the two Notices of Motion.

63. On that date His Honour gave an extempore judgment in which he permanently stayed the proceedings.

64. While I hesitate to quote so extensively from His Honour's judgment, the following comments therein appear to me to be relevant to the question of costs:

1. This is an application for a stay or dismissal of the proceedings… …
2. Much has been said about what the respondents have done to varying degrees in order to meet the complaint raised by the applicant to the effect that the posters were erected and have not been subsequently removed. There is now a concession that such posters as were erected within the Woollahra area by the first respondent have been removed. The same concession is not made in regard to the actions of the second respondent. Mr Duncan informs the Court from the bar table that there may be "ten'ish" remnants of posters which remain from the original posters erected by the second respondent and at the hearing he would seek to lead evidence to that effect.
3. Submissions have been made about the practice of the Court to confine its power to grant declaratory relief so that it is not involved in answering abstract or hypothetical questions. Generally circumstances might be identified where the only relief that is ultimately sought is a declaration and no orders flow from it. …
4. The respondents have drawn on established authority to put the proposition that in order to restrain future actions there first must be shown a substantial hardship to the applicant. I am not sure that principle is necessarily applicable in proceedings of this nature where the Court is asked to enforce a public duty or an obligation which arises under a statute such as the EP&A Act which itself has regard to public rights and interests. Nevertheless, the hardship might be the detriment that could flow by way of injury to the environment if the practices which are here the subject of challenge are left unchecked. Mr Duncan also made some points about the ramifications of any decision in these proceedings extending beyond the Municipality of Woollahra and applying as a warning generally to other candidates in elections that they need to heed provisions such as those contained in the LEP. 8. There has been a lot of to-ing and fro-ing between the parties and at various times undertakings have been sought. Mr Duncan asserts that if the opportunity had been taken at some earlier time to remedy the situation, then the necessity for these matters to proceed would not now exist. All of those things may well be correct. 9. There are a number of flaws in the argument put forward by the applicant in support of his submission that the proceedings should be maintained on foot and these need to be dealt with. Firstly, there is no evidence, either of a substantive or even inferential kind, that would lead the Court to have the remotest inclination to find that either of the remaining two respondents are likely to offend again. The third respondent has entered a submitting appearance. 10. Secondly, the utility of making any orders is very much in question, even if the applicant was successful in obtaining a declaration to the effect that he seeks. This is so given that there are now, by admission, no relevant offending posters in existence so far as the first respondent is concerned and those that do remain in the case against the second respondent are, firstly, remnants and secondly, few in number. I do not accept that the existence of remnants beyond those identified by the applicant is a real possibility. On the evidence as it stands, surveys have been undertaken on behalf of both respondents. The surveys disclose that the direct evidence produced by the applicant is no longer in existence. 11. I do not mean to demean the ultimate argument that posters such as are the subject of these proceedings can cause environmental harm . I do not seek to make any judgment about the particular behaviour of the respondents in this particular case and the seriousness of the breach of the EP&A Act that may or may not have occurred.
5. The serious problem that the applicant has is that the Further Amended Points of Claim insist that the Court make a declaration that the erection of the posters requires development consent. In that respect I accept the strength of the submission made by both respondents and particularly by Mr Kildea in reply that the nature of the posters which are the subject of these proceedings is such that they should properly be regarded as temporary signs which prima facie fall within the terms of a temporary sign described in the table to cl 25B of the LEP. Applying the most basic rules of construction and addressing the words as they appear according to their ordinary meaning, a poster erected for the purpose of an election, be it of any kind, is of a temporary nature. 13. The election that was being held at the relevant time was a State election. Nevertheless, the State election involves candidates standing in various local electorates. The posters which are the subject of evidence relate only to the election of the local candidate. The event that was the catalyst for the erection of the posters was the election of a local member of parliament within the electoral district of Bligh which covers part of the Woollahra Municipality. 14. I do not have to make a final finding about that. Nevertheless my remarks must lead to an indication that there is a strong case in answer to the applicant's case. By way of defence, the provisions of cl 25(B1) can be raised on the basis that the erection of the posters was for the purpose of an advertisement described in the Table of that clause and thus could be carried on without consent. It is not alleged that the conditions under which such a notice can be erected have been breached. What is alleged is that there has been a breach of cl 16. I am not satisfied the applicant has established a strong case on the construction of the LEP in that respect. 15. Having regard to the circumstances and taking into account the whole of the evidence, together with the elaborate submissions presented by counsel for the two respondents and Mr Duncan himself, I am satisfied this is an appropriate case where the proceedings should be the subject of a permanent stay. I propose to make an order accordingly. … 17. … The proceedings are permanently stayed. [emphasis added]. The Motions for Costs

Against the background of the repeated reservation of the question of costs throughout the proceedings, Talbot J made the following comments in par 16 of his judgment of 13 September 1999: Obviously there are matters that would need to be ventilated in addition to those which were raised before me today in regard to any question of costs. There has been a great deal of correspondence, negotiation and discussion which may or may not lead to a special order as to costs. I do not seek to reach any conclusion about that, nor to give any indication except to explain why it is that the question of costs may have to remain in abeyance. Hopefully the parties, having considered the reasons given for staying the proceedings, may be able to come to some conclusion in that respect without further hearing. It is nevertheless a relevant matter that the proceedings have a very small prospect of success. Notwithstanding, I reserve the question of costs.

On 9 December 1999 , Moore filed a Notice of Motion seeking the following orders: 1. The Applicant pay the costs of the First Respondent in relation to: (a) the First Respondent's Notice of Motion heard and determined by His Honour Justice Talbot on 13 September 1999. (b) The Second Respondent's Notice of Motion heard and determined on 30 June 1999. (c) The proceedings generally. on an indemnity basis. 2. In the alternative to order 1. above, that the Applicant pay the First Respondent's costs of and incidental to: (a) The First Respondent's Notice of Motion heard and determined by His Honour Justice Talbot on 13 September 1999. (b) The Second Respondent's Notice of Motion heard and determined on 30 June 1999. (c) The proceedings generally. On a party/party basis. 3. The Applicant pay the First Respondent's costs of and incidental to this Notice of Motion. 4. Such further or other orders as this Honourable Court deems appropriate.

On 17 December 1999 , Smith filed a Notice of Motion seeking the following orders: 1. The Applicant pay the costs of the Second Respondent in relation to: (a) The First Respondent's Notice of Motion heard and determined by His Honour Justice Talbot on 13 September 1999. (b) The Second Respondent's Notice of Motion heard and determined on 30 June 1999. (c) The proceedings generally. on an indemnity basis. 2. In the alternative to order 1. above, that the Applicant pay the Second Respondent's costs of and incidental to: (a) The First Respondent's Notice of Motion heard and determined by His Honour Justice Talbot on 13 September 1999. (b) The Second Respondent's Notice of Motion heard and determined on 30 June 1999. (c) The proceedings generally on a party/party basis. 3. The Applicant pay the Second Respondent's costs of and incidental to this Notice of Motion. 4. Such further or other orders as this Honourable Court deems appropriate.

Although the Notices of Motion by Moore and Smith primarily seek indemnity costs , their representatives at the costs hearing suggested that the court should just make an order (or orders) for costs, in general terms, in their favour, because of the way the costs assessment procedures now work in practice, which apparently renders rather nugatory the distinction between indemnity costs, solicitor/client costs and party/party costs.

That concession by Moore and Smith simplifies the issue before me somewhat, as the court would otherwise have needed to explore the use and implications of concepts of " collateral purpose " and " abuse of process " in par 35 of Pearlman J's judgment (see par 37 above). " Ulterior motives " and such matters squarely bring questions of costs within the purview of the principles as to indemnity costs in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397. The concession allows the court to focus on the central question, namely whether there should be any orders for costs at all in these proceedings.

The Registrar gave directions and set the costs motions down for further hearing on 21 February 2000 before Talbot J. On that date the matter was stood over by Talbot J, by consent , to a date to be fixed before the Registrar for hearing of the costs motions by any Judge of the court. In the end, the matter came before me on 20 March 2000, and I saw no need to disqualify myself from hearing it.

(iii) The means of parties, and other sources of funds

The means of the parties is not a relevant consideration. See Talbot J in Director General of the Department of Land & Water Conservation v Ramke (" Ramke ") [1999] NSWLEC 22 (par 44) and Bignold J in Tzavellas v Canterbury City Council & Anor (1999) 105 LGERA 262.

In his affidavit of 21 February 2000, Duncan deposed to having obtained a ruling from the Electoral Commissioner of New South Wales that he could not regard his liabilities for any costs in respect of these proceedings as " electoral expenditure ", recoverable to some extent through the system of public funding for elections. I have not taken that ruling into account.

Likewise, it is of no importance to the court, in deciding appropriate orders to make as to costs, that any party may receive help in paying them , or that his or her representative may, in the end analysis, waive or " donate " some of them.

On 21 February 2000 Duncan issued to Moore and Smith a Notice to Produce ( Exhibit A1 ) requiring production by them, at the hearing of their respective motions for costs, of the following documents, which were obviously sought to advance an argument about who actually would satisfy any costs order against one or more respondents: 1. All disclosures of costs pursuant to s 175, 176 and or 178 of the Legal Profession Act 1987. 2. All costs agreements pursuant to Part 11, Division 3 of the Legal Profession Act 1987. 3. Any electoral return furnished in respect of the 1999 State election for the seat of Bligh. 4. All receipts, cheque butts, invoices, memoranda of fees or bills of costs or the like, relating to legal fees paid or payable pertaining to these proceedings.

On the giving, by Counsel for Moore and Smith, in open court before me on 20 March 2000, of an assurance that any documents produced in response to par 3 of that Notice to Produce would not disclose any donation or undertaking to cover their respective costs of these proceedings, Duncan did not press par 3 of the Notice to Produce.

Also at the hearing on 20 March 2000 I granted leave to Moore and Smith to file in court, returnable instanter, Notices of Motion to set aside the Notice to Produce. The Notices of Motion also sought orders for the respective costs thereof.

I granted those motions and set aside the Notice to Produce, as such information as might be elicited from compliance with it could not be relevant to my consideration of the appropriateness of making any costs orders themselves.

As a result of that decision, the court must also now determine if any order for costs is appropriate in respect of the decision on those Notices of Motion.

On 1 March 2000 Duncan wrote to the solicitors for Moore ( Exhibit A2 ) seeking to settle the question of costs. That letter said: I refer to your letter of 28 February 2000.

I have made an offer of $5,000 communicated to your Counsel the Friday before last and repeated to Mr Baxter in Court. It has not been accepted but will remain open until 10am tomorrow.

Your client has a motion on foot for costs. Even if the documents you say are privileged (which I doubt), on the question of costs it is relevant whether your client has actually incurred costs at all, whether there was an agreement that she would only be required to pay on certain terms and/or the amount of those costs (if any) which her legal advisers are entitled to recover under the Legal Profession Act and Regulations.

Is the reason that you wish to challenge the notice to produce that the documents in question do not exist? If so, the amount of her costs recoverable by you would be minimal and any indemnity for costs accordingly limited.

If you do intend to press a new motion, please have it made returnable for 20 March 2000.

I reserve the right to tender this letter and previous Calderbank letters on the question of costs.

Duncan made such an offer only to Moore, and he told the court that he had made, and would make, no offer to or in respect of Smith, the distinction being that Moore had effectively removed her offending posters, but some of Smith's posters, or at least remnants of them, remained on power poles in the Bligh electorate at least as at 21 February 2000. In his affidavit of 21 February 2000 Duncan alleged that " remnants remain on power poles in Paddington and Darlinghurst ". Photographs were annexed to support that assertion.

I am conscious of the principles in cases such as Calderbank v Calderbank [1975] 3 All ER 333, Messiter v Hutchinson (1987) 10 NSWLR 525, and Hetherington v Mirvac Pty Ltd & Ors (1999) NSW SC 515, but in view of the concessions given by the Respondents, I do not need to deal with the implications of those principles for Duncan's offer of 1 March 2000 ( Exhibit A2 ).

It should also be made quite clear that I do not accept Duncan's submission that the comments about this case, authored by Mr Kildea of Counsel, at p 2.840 of Naughton's Practice Book regarding this court, should be accepted by the court as an " admission against interest " on behalf of Smith.

Some of these " preliminary " matters may or may not be relevant to a costs assessor, but should not distract the court from the correct application of principle and the correct exercise of its discretion on costs.

Duncan continues to assert that these proceedings have a relevance beyond the 1999 election, as well as beyond the Municipality of Woollahra and the electorate of Bligh, and, on the question of immunising him from any order for costs, he calls in aid the High Court's decision on " public interest " litigation in Oshlack v Richmond River Council (1998) 193 CLR 72.

On the other hand, essentially Moore and Smith say that Duncan should have desisted in his claims immediately after the election had passed. They say that he fundamentally lost the case a few days before the election, before Pearlman J, and has since had two adverse results before Talbot J, which have combined to bring it to an end.

With respect, that overstates what occurred to Duncan's case when the interlocutory hearing took place on 23 March 1999, and when the stay was granted on 13 September 1999.

In fact, it could equally be said on Duncan's behalf that the response to any initiative taken by him at any stage of these proceedings since the election passed (including the making of an offer to settle with Moore on costs, and the giving of a Notice to Produce) appears to have been the filing of Notices of Motion aimed at stopping him without joining the real issues he raised. Duncan adopted during my debate with him in the course of his submissions, the suggestion that he was asserting that he had been " stopped but not beaten " by the Respondents.

Both Talbot J and Pearlman J accepted in their judgments the prospect of Duncan's eventually making out a case for environmental harm flowing from the erections complained of. No one has yet determined the question whether or not that behaviour breached either the PEEA and/or the ESA. Pearlman J recognised the jurisdictional question and Talbot J determined it, but the merits remain undetermined, and both judges recognised the likelihood of a full and final hearing.

Despite that fact, it must be noted that the following findings adverse to Duncan have been made during the course of the proceedings: (a) that he may have gained some personal/political advantage from bringing and succeeding in the litigation, whether or not it is of a " public interest " character; (b) that for some reason he chose, inappropriately, the Land & Environment Court, rather than the Court of Disputed Returns, which the Chief Judge found to be the more appropriate forum, thereby taking him outside s 25 of the EOP Act; (c) that there was some denial by him of procedural fairness to the Respondents in the early stages of the proceedings; (d) that the "balance of convenience" tipped against him and in favour of the respondents at the interlocutory relief stage; (e) that this court lacked jurisdiction to deal with two of his substantive claims; (f) that the erections did/do not require development consent; (g) that his proceedings should be stayed; and (h) that he should not be able to compel the Respondents to make financial disclosures.

Despite losing the election in Bligh, Duncan has persevered quite doggedly with these proceedings. He told the court at the costs hearing that he obtained a very small number of votes in the election, and it would seem, from the general silence on the subject, that he has chosen to take no proceedings in the Court of Disputed Returns.

When the Notice of Motion to stay or dismiss the proceedings was heard six months after the case had began, the court did not dismiss the proceedings, but permanently stayed them.

It is fair to say that Talbot J concluded that so much of Duncan's case as fell within this court's jurisdiction was " not … strong ", in that it required a finding that under the LEP, temporary signs require development consent. His Honour noted (par 14) that " there is a strong case in answer to the applicant's case ". Certainly a finding favourable to Duncan on the development consent point would seem to me to lie beyond the reasoning I myself followed in Garbacz & Ors v Morton & Anor [2000] LEC 17 (see pars 48-52 of my judgment). Talbot J concluded (par 16) that "… the proceedings have a very small prospect of success ".

Despite that, His Honour had said (par 7) that if the applicant needed to show " a substantial hardship " it might be found in " the detriment that could flow by way of injury to the environment if the practices which are here the subject of challenge are left unchecked " . His Honour also took into account (par 9) what he described as the little likelihood that the Respondents would " offend again ", and acknowledged (par 11) the remaining possibility that a breach of the EP&A Act may have occurred.

In the end result on 13 September 1999, Talbot J appears to have exercised his undoubted discretion to stay the proceedings, partly on the basis that the case is weak and may be strongly defended, and partly on the basis that there was little utility in their continuing, given that the election was over, and there was absolutely no evidence that the behaviour complained of on the part of the Respondents would continue.

For his part Duncan submits that utility of the proceedings should not be measured in the debate on costs by success or failure at each stage of the proceedings. It was, in his circumstances, reasonable and appropriate for him to commence and maintain the proceedings. The Chief Judge's decision on s 25 of the EOP Act effectively disqualifies political candidates from availing themselves of s 123 of the EP&A Act during an election campaign. Duncan seems to have accepted that part of her decision, acquiescing in a direction by the Registrar on 25 May 1999 to delete s 25 from his Points of Claim, but he still argues that the proceedings are of general and future relevance .

He offered to avoid the litigation before it was commenced, and, once it was commenced, he has offered to settle it at various stages before and after the election was held.

When one examines the history of these proceedings, the only substantive victories for any party, since the original granting of the ex parte injunction, is the Respondents' success on the jurisdictional point, and then in getting a stay.

There is no firm result as yet on the fundamental remaining question, however weak Duncan's case may be, of the illegality of the erections. His Points of Claim are still on foot, and no Points of Defence have yet been filed. Hence, the principal substantive issues raised by Duncan (apart from those held by Talbot J to be outside the jurisdiction of this court) have never even been joined.

While Talbot J's permanent staying of the proceedings may mean that the merits, if any, of Duncan's claim will never be determined, it does not constitute a finding that they do not exist. It may be that he cannot win the war, in that he continues to lose skirmishes and battles, and it may be that he is not allowed to conduct the war any further, but the fact remains that he has not totally lost it yet.

It must also be remembered in this context that of the four parties involved in these proceedings, all of whom equally were candidates in the election, one submitted from the very outset of the proceedings to any orders of the court and has not been heard on any question raised since. The other Respondents could have adopted the same submitting stance at any time and left Duncan to prove his case.

In broad terms, the costs-relevant " events " in the history of these proceedings, as outlined, can be listed as follows: (a) 18.3.1999 Duncan obtained an ex parte injunction from Pearlman J (b) 23.3.1999 Duncan lost his (contested) claim for interlocutory relief before Pearlman J, but Fussell entered a submitting appearance (c) 30.6.1999 Two key components of Duncan's claim were struck out for lack of jurisdiction by Talbot J, on the motion of Smith, supported by Moore (d) 13.9.1999 Duncan's proceedings were permanently stayed by Talbot J, on the motions of Smith and Moore (e) 20.3.2000 Duncan's notice to produce was struck out by Sheahan J, on the motions of Smith and Moore (f) 20.3.2000 Smith's and Moore's notices of motion for costs were heard by Sheahan J

Before these specific costs-related " events " are addressed, I should summarise the general principles that should be applied.

Section 69 of the Land & Environment Court Act 1979 (" the Court Act ") provides that costs are in the discretion of the court. The cases make clear that such discretion is absolute and unfettered, but that it must be exercised judicially. (See Oshlack , and Donald Campbell & Co Ltd v Pollak [1972] AC 732.

Orders for costs are designed to compensate not punish the parties for participation in litigation ( Latoudis v Casey (1990) 170 CLR 334 ).

Reynolds JA said in Laguillo v Hayden Engineering Pty Ltd (1978) 1 NSWLR 306 (at 309) that the costs discretion " must be exercised so as to give effect to notions of fairness and justice, and not according to statements made by courts which seem to confine the complete discretions accorded to the Trial Judge ".

Talbot J commented in Ramke (par 41): Long before the decision of the High Court in Latoudis … it was accepted that the discretion to make an order for costs is absolute and unfettered although it is to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A court should not exercise its discretion against a successful party 'except for some reason connected with the case' (Donald Campbell).

As Gaudron and Gummow JJ said in Oshlack (at par 40): There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.

The High Court judgments in Oshlack , both majority and minority, provide valuable guidance regarding the exercise of the discretion. The majority decision makes clear that, in the exercise of its wide discretion on costs, this court may take into account as one relevant factor, the public interest nature, if any, of the relevant proceedings. It does not lay down rules for application in all cases involving matters of the " public interest ". (See Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (1998) 99 LGERA 140).

Kirby J said in South West Forests Defence Foundation Inc v WA Department of Conservation & Land Management [No.2] (1998) 72 ALJR 1008 that courts should have: …a broad discretion in such matters which cannot be shackled by immutable rules. However that jurisdiction must be exercised judicially and in accordance with conventional, although not inflexible, practice. Nothing in … Oshlack … requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new cost regime is to apply exempting that individual or body from the conventional rule. To suggest that would be to misread what the court decided in Oshlack. It would require legislation to afford litigants such a special and privileged position so far as costs are concerned.

Stein J had said at first instance in Oshlack (see 82 LGERA 236 at 246): In summary I find the litigation to be properly characterised as public interest litigation. The basis of the challenge was arguable, raising serious and significant issues resulting in important interpretation of new provisions relating to the protection of endangered fauna. The application concerned a publicly notorious site amidst continuing controversy. Mr Oshlack had nothing to gain from the litigation other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna. Important issues relevant to the ambit and future administration of the subject development consent were determined, including the developer's acceptance of the need for an FS for stage 2. These issues have implications for the Council, the developer and the public.

In Seaton & Ors v Mosman Municipal Council (" Seaton ") (1998) 98 LGERA 81, Mason P said (at 98): This case does not appear to raise questions of general principle and the appellants have not urged the same degree of disinterested motivation as was relied upon by Mr Oshlack .

McHugh J said in Re the Minister for Immigration & Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 at 625: If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.

His Honour went on to say that " this approach has been adopted in a large number of cases " and he cited several examples.

Lai Qin's application in this court is discussed by Bignold J in Hayden Theatres Pty Ltd v Penrith City Council & Anor (1998) 105 LGERA 230, but it is of particular application when a party elects not to pursue an action, having achieved the relief sought through another means. See Joanou v Randwick City Council & Anor (1998) 105 LGERA 237 at 240. See also Bignold J's discussion of Hill J's analysis of the law on costs in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, in Joanou at 240-242.

McHugh J said in Oshlack (at 97-8): The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 at 874, Devlin J formulated the relevant principle as follows:

'No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct'. 'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation, unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.

McHugh J noted (at 98) that " there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct ".

McHugh J also said in Lai Qin (at 624): When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order .

In Gribbles Pathology Pty Ltd v Health Insurance Commission (" Gribbles ") (1997) 80 FCR 284 (at 287) Finkelstein J said: … in the absence of a hearing on the merits it is difficult to see how any order other than an order that each party bear its own costs can be made except in special circumstances … If a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be a good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party. [emphasis added].

Ordinarily in class 4 litigation, costs follow the event, but where litigious success is only partial, apportionment of responsibility for the costs of the party or parties thought to have been successful is often considered appropriate by the court.

The thrust of the leading cases is to encourage the court to analyse the behaviour of all parties in the circumstances of the litigation.

The implications of Oshlack for this court have been dealt with in several important cases.

Bignold J said in Mills & Ors v Department of Land & Water Conservation & Ors [1999] NSWLEC 254 (at par 53) that " Oshlack must now be regarded as the definitive exposition of the nature of the court's discretion as to costs conferred by s 69 ".

On Oshlack's implications for the correct construction and application of s 69(2) of the Court Act, the Chief Judge in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (" Showground ") (1998) 105 LGERA 254 deduced and stated the following principles: (1) The discretion conferred upon the Court by s 69(2) is wide and unconfined: Oshlack at 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 180; Latoudis v Casey (1990) 170 CLR 534 at 557; Australian Conservation Foundation v Forestry Commission of Tasmania (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 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 567; Oshlack at 213. (5) However, the principle that costs follow the event is not a fixed or absolute rule: Oshlack at 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 EPA Act, may include factors which have a public interest nature: Oshlack at 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 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 213.

In Showground , Her Honour, applying those principles to the facts, accepted that the applicant had an arguable case, which was not " specious or entirely hopeless " . Her Honour went on to say (par 9): …but the challenge was based on conventional grounds. The resolution of the issues did not require an analysis of significant new legislation (compare Oshlack at first instance) nor contribute to a proper understanding of the law in question: Oshlack at 215 .

Her Honour concluded (par 25) that there were: no special circumstances which would justify a departure from the usual rule that costs follow the event. I have found that the litigation was brought to advance a public interest in matters in which there was significant public concern, but these factors do not outweigh the fact that the applicant failed on all grounds of its challenge, and overall, there are no other factors which warrant a departure from an award of costs in favour of the respondent as the successful party .

Application of the principles to the " circumstances " of this case

Given the position adopted from the very beginning of these proceedings by Fussell, the submitting Third Respondent, there has been no suggestion that any of the other parties should be responsible for any of his costs, nor is there any suggestion that he should be the subject of any order in favour of or against him in respect of the costs of the other three parties.

It remains, therefore, for the court to determine where the burden of costs should lie as among the remaining three parties, namely Duncan, Smith and Moore.

Duncan's case has not been held to be " patently hopeless " ( Gribbles, par 118 above); nor has it failed on all grounds.

I accept Mr McEwen's submission that this litigation does not meet the criteria enunciated by Stein J at the trial level in Oshlack (par 110 above) . Duncan was able to point to several of the Stein J criteria that applied to him, but that put his case at its highest. He was indeed seeking to enforce what he says are public law obligations, but his motivation was not solely the upholding of the public interest and the rule of law. There is no evidence that a significant number of members of the public share his stance and motivation such as to create a genuine " public interest " in the outcome. I am by no means sure that the " public will be grateful " for his pursuing the case to the end establishing a " precedent " regarding the erection of posters.

Duncan has not demonstrated any general public interest in the subject matter, nor a significant public concern regarding the erection of posters and the possibility of their causing environmental harm. He has not satisfied me on the tests laid down in Seaton (par 111 above) or Showground (par 125). Therefore, I do not think that Duncan is entitled to any order for costs in his favour .

However, I think it is clear, from my analysis of the history of the case, that this matter displays some " special circumstances " warranting a departure from making the " usual order " against Duncan. Such circumstances include public interest aspects of the case ( Showground , par 123 above).

Had the proceedings been permanently stayed on the grounds only of utility, such as occurs for example when legislation suddenly introduced renders proceedings pointless, rather than only partially on those grounds and primarily, it would appear, on the grounds of the relative perceived weakness of the applicant's case, I would clearly have adopted the usual approach to such matters, namely, that the losses lay where they fall, and make no order as to costs. ( Lai Qin , par 117 above).

However, Duncan's proceedings remains at least partially unresolved, and minds differ on their utility. The question, therefore, is whether Duncan should be responsible for any or all of the costs incurred by the actively participating respondents Moore and Smith, who elected not to adopt the stance taken by Fussell.

It appears to me, from close consideration of the relevant authorities, including Oshlack so far as it might indicate that no order should be made against Duncan, that the appropriate exercise of the court's discretion is to apportion the liability for the costs, considering each costs-related " event " (par 101 above) in turn.

Smith and Moore had at least partial " victories " before Pearlman J on 23 March 1999, Talbot J on 30 June 1999, and Talbot J again on 13 September 1999.

However, the Chief Judge had clear " misgivings " about the case. With only a matter of days to go before the election she decided the interlocutory proceedings urgently and primarily on " balance of convenience ", and procedural fairness. With respect to the latter ground, I simply note that respondents rarely have as much notice of ex parte proceedings and their nature as Duncan gave in this case, and Pearlman J referred, in that context, only to his failure to mention the EOP Act point.

I believe the appropriate exercise of the court's discretion on costs, so far as the two decisions of Pearlman J are concerned, namely events (a) and (b) , in which the merits issues were dealt with on only an interlocutory basis, is to order that each party bear his or her own costs. ( Lai Qin , par 112 above).

Event (c) concerns the striking out of two key components of Duncan's claim for lack of jurisdiction. If there is no jurisdiction to hear such claims, they should indeed be struck out, but there is also no jurisdiction to make orders for costs in regard thereto. See Plumb v Comcare (1992) 39 FCR 236 and Byron Shire Council v Vigden & Anor [1999] NSWLEC 121, 198 and 285, especially per Cowdroy J in #285 at pars 10ff. Each party should, therefore, bear his/her own costs in respect of event (c).

In respect of Talbot J's decision permanently staying the proceedings, event (d) , no such impediment exists. See Vigden #198. Further, I reject Duncan's submission that the failure of Smith to remove some posters and some remnants of others is sufficient "disentitling conduct " on Smith's part - the illegality of the erections, and the environmental harm caused by the remnants have not been proved. Smith and Moore are thus entitled to orders that Duncan pay their costs in respect of their notices of motion dated 21 June 1999 and 9 July 1999 respectively.

Clearly costs should follow event (e) , the Notice of Motion to set aside Duncan's Notice to Produce. The issue was not relevant to the court's function at this stage and the Notice to Produce could not stand. The Applicant should pay the costs of both Moore's and Smith's Notices of Motion regarding Duncan's Notice to Produce.

As all three relevant parties had serious points to argue in their favour on the question of costs, event (f) , each party should bear his or her own costs of the hearing of Smith's and Moore's Notices of Motion for costs, dated 17 and 9 December 1999 respectively.

As the claims for indemnity costs were not pressed, the orders for costs will be made, as requested by the representatives of Smith and Moore, in general terms .

Accordingly, I make the following orders: 1. The Applicant is ordered to pay the costs of the First and Second Respondents, as agreed, or as assessed according to law, in respect of : (a) their Notices of Motion of 9 July 1999 and 21 June 1999 respectively seeking dismissal or stay of the Applicant's class 4 application; and (b) their Notices of Motion dated 20 March 2000 to set aside the Applicant's Notice to Produce. 2. In all other respects each party is ordered to bear all of his or her own costs of these proceedings. 3. The exhibits may be returned.

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