Green & Anor v Minister for Climate Change, Environment and Water

Land and Environment Court (NSW)|2008-04-07|Before: Jagot J

CITATION : Green & Anor v Minister for Climate Change, Environment and Water (No 2) [2008] NSWLEC 133

APPLICANTS Bruce Green & Lynette Judge PARTIES : RESPONDENT Minister for Climate Change, Environment and Water

KEY ISSUES: Costs :- whether usual order as to costs should be made - whether respondent's conduct invited proceedings - each party ordered to pay its own costs

CASES CITED: Green & Anor v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 Oshlack v Richmond River Shire Council (1998) 193 CLR 72

DATES OF HEARING: Written submissions received on 25 March and 7 April 2008

APPLICANT Mr B Green SOLICITORS Richard Harvey & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms M Allars SOLICITORS NSW Department of Water and Energy

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BRUCE GREEN & LYNETTE JUDGE Applicants

MINISTER FOR CLIMATE CHANGE, ENVIRONMENT AND WATER Respondent

JUDGMENT Jagot J: 1 On 12 February 2008 I dismissed the applicants' class 4 application seeking a declaration that they were entitled to an aquifer access licence containing a share component greater than that acknowledged by the respondent (Green & Anor v Minister for Climate Change, Environment and Water [2008] NSWLEC 48). I ordered the applicants to pay the respondent's costs, subject to the applicants having an opportunity to be heard on costs, in which event the costs order would be set aside. The applicants claim that the respondent should pay the applicants' costs or that each party should pay its own costs or that any costs order in favour of the respondent should be significantly reduced. Hence, the initial costs order has been set aside and costs remain for determination. The parties filed written submissions (on 25 March and 7 April 2008) and agreed that the issue with respect to costs should be determined in chambers on that basis.

2 Terms used in these reasons have the same meaning as in the principal decision of 12 February 2008.

3 The parties relied on general principles with respect to costs to support their competing provisions. They did not submit that the appropriate outcome with respect to costs was affected by the commencement of the Courts Legislation Amendment Act 2007 on 28 January 2008 (noting that cl 17 of Sch 6 to the Civil Procedure Act 2005 provides a general savings provisions with respect to the operation of the Courts Legislation Amendment Act). The Courts Legislation Amendment Act repealed s 69 of the Land and Environment Court Act 1979 and applied the Civil Procedure Act and the Uniform Civil Procedure Rules 2005 to this Court. The parties also did not make any submission about the operation of rule 4.2 of the Land and Environment Court Rules 2007 (which commenced on 5 December 2007). Rule 4.2 provides that the Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

4 The applicants pointed to the following circumstances before the commencement of the proceedings in support of their claims with respect to costs: - (i) despite three requests for clarification between February and June 2007 the respondent's Department did not provide any response to the applicants' concerns about the calculation of their share component until 17 July 2007, (ii) in this long overdue reply the respondent's Department said that there was an error in the plan, which was being corrected, (iii) the letter did not, however, disclose the nature of the error and, in particular, did not suggest that the Department's position was that the reference to "since" in cl 25C(4) of the plan should be read as meaning" prior to", (iv) the letter did not refer to the 2006 Regulation or explain the Department's view that that its provisions operated irrespective of the plan, (v) the letter otherwise incorrectly referred to amendments to cl 25C of the plan (which had never been amended), and (v) these circumstances caused the applicants to commence the proceedings by reason of the respondent's errors, carelessness and inadequate disclosures.

5 The applicants relied on the following circumstances after the commencement of the proceedings: - (i) the applicants remained in the dark about the respondent's position on the function of the 2006 Regulation until the respondent filed points of defence on 8 October 2007 and an affidavit of Mr Coady on 31 October 2007, (ii) even these documents did not disclose that the Department considered the 2006 Regulation deemed a particular result irrespective of the provisions of the plan, (iii) the true import of the respondent's position was first disclosed when the respondent's written submissions were served on 30 January 2008 (two working days before the hearing), (iv) many practical considerations affected whether the respondent would actually put this argument, including the fact of inconsistency with the published plan, and (v) had the true position been disclosed earlier the proceedings need not have been commenced or could have been terminated.

6 The applicants also pointed to the following facts: - (i) the difference in the two positions (under the plan and the 2006 Regulation) involved significant financial loss for the applicants, (ii) although the proceedings did not involve public interest litigation in the traditional sense, there was genuine uncertainty about public documents requiring resolution, and (iii) the uncertainty was wholly the result of the respondent's conduct.

7 The respondent submitted that the usual order for costs should be made in the respondent's favour as: - (i) the respondent succeeded on all issues, (ii) the respondent had not engaged in any disentitling conduct, (iii) the respondent's submissions were two days late by reason of the applicant's own lateness of the same order, (iv) the 2006 Regulation was not obscure, as the applicants claimed, (v) the 2006 Regulation was referred to in the points of defence, including the deeming provision in cl 29B and Sch 4A, (vi) the error in the plan was explained in Mr Coady's affidavit, (vii) the applicants could not have been taken by surprise when the respondent relied on the 2006 Regulation, and (viii) there was no public interest component in the litigation, and the applicants were the only licence holders to attempt to rely on the error in cl 25C(4) of the plan.

8 I do not consider that the legislative amendments with respect to costs identified above make any material difference to the outcome in this particular case. Under both legislative regimes the Court has a discretion with respect to costs. The discretion must be exercised judicially. The usual order as to costs reflects the important principle that, subject to limited exceptions, a successful party is entitled to be compensated for the costs that the party has incurred in bringing or defending proceedings. Any misconduct of the successful party is a relevant factor in the exercise of the discretion, both leading up to and in the litigation. An example given by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [69] is of a party that, by its lax conduct, effectively invited the litigation.

9 In this case, and as the applicants' submissions stress, the respondent made the plan, including cl 25C(4). Clause 25C(4), in terms, informed holders of bore licences that their replacement aquifer access licence would have a share component determined in accordance with a formula. The 2006 Regulation said that share components in Sch 4A had been calculated in accordance with the applicable plan. As explained in the principal reasons, the plan and 2006 Regulation formed part of a legislative package. The package, however, was internally inconsistent. The share component calculated in accordance with the plan was different from what was provided for in Sch 4A of the 2006 Regulation. The Court was required to reconcile the inconsistent provisions of the plan and the 2006 Regulation. One or the other had to give way. This process of construction led to acceptance of the respondent's argument that the words of cl 25C(4) could not be given their ordinary and natural meaning but had to be given an adjusted meaning to accord with the 2006 Regulation. I described the required adjustment (of reading "since" in cl 25C(4) of the plan as meaning "prior to") as appearing to "go beyond what might be contemplated by application of the principles of statutory construction" if cl 25C(4) of the plan were read in isolation (at [51]). In context, however, I accepted that the proper reconciliation of the inconsistent provisions of this legislative scheme required the respondent's argument to be accepted. Clause 25C(4) of the plan thus gave way to the 2006 Regulation.

10 I consider these circumstances displace the usual order as to costs. The respondent made a plan containing an error about a matter of the utmost significance to holders of bore licences, including the applicants. The plan is a document of critical importance in the scheme of the Water Management Act 2000. It is a public document on which people, including the applicants, should be expected to rely. Irrespective of the judgment delivered on 12 February 2008, unless and until the error in the plan is corrected it will be apt to cause confusion and difficulty. This is because people will understandably look to the plan to ascertain their rights and obligations.

11 The respondent's Department recognised the error in the plan and the fact that it should be corrected by July 2007. However, no steps have been taken to correct the error. The error in the plan and thus the fundamental inconsistency within the legislative scheme has been allowed to remain. Although the respondent referred to the relevant statutory provisions in the defence and identified the precise nature of the error in Mr Coady's affidavit, the respondent's position on the process of adjustment of the natural and ordinary meaning of the plan by reference to the 2006 Regulation was not apparent until the respondent's submissions were served. Those submissions prompted the applicants' competing argument for adjustment of the 2006 Regulation rather than the plan.

12 In these circumstances, it is fair to characterise this case as one where the respondent effectively invited the proceedings both by making the plan containing such an error and by not correcting the error in a timely manner. Moreover, resolution of the inconsistency between the plan and the 2006 Regulation was in the interests of the respondent as much as the applicants. But for the proceedings, the inconsistency would remain unresolved. In a legislative scheme providing for the ascertainment of important rights by reference to promulgated documents, that would be unacceptable.

13 For these reasons I am satisfied that it would be unjust to order the applicants to pay the respondent's costs of the proceedings.

14 Having regard to these circumstances I consider that the appropriate order is that each party should pay its own costs of the proceedings. I do not accept the applicants' submission that the respondent ought to pay the applicants' costs. The applicants knew the nature of the error in the plan by 31 October 2007, knew the respondent's argument two days before the hearing, and elected to combat that argument with an alternative (and unsuccessful) adjustment of the otherwise irreconcilable provisions.

15 Accordingly, each party is ordered to pay their own costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Cases Cited (2)

Cited By (1)