Gunning Sustainable Development Association Incorporated v Upper Lachlan Council and Anor

Land and Environment Court (NSW)|2004-10-29|Before: Pain J, Mr J, Mr P

The Applicant's Submissions 13 The Applicant, as represented by Mr Stewart-Richardson, argued that the billings attested to by the Respondents' respective solicitors did not necessarily reflect the actual costs which should be involved in proceedings of this nature. A submission was also made that it was inexplicable that the Respondents' costs had risen so dramatically since July 2004 when the Respondents indicated, as a basis for the consent orders that were made in relation to security for costs, that their costs were approximately $45,000. The Applicant submitted that since July 2004 there has only been one substantial change to the nature of the proceedings, being the expansion of the hearing time from two to three days and this change alone does not explain such a large increase in the Respondents' anticipated and incurred costs. The Applicant also submitted that it was unclear as to why the Respondents needed to be separately legally represented.

14 The Applicant relied on Oshlack v Richmond River Council (1998) 193 CLR 72 ("Oshlack") to support its argument that the proceedings clearly relate to a matter of public interest, having been brought in relation to a matter of public concern and not in relation to any private or contractual right.

15 In particular, the Applicant argued that the issues raised in its Statement of Issues in relation to the First Respondent's failure to consider: (a) the suitability of the bore water as a potable water supply; (b) a geotechnical report; or (c) the economic impact of the proposal on the town of Gunning; in determining the First Respondent's development application are issues which are necessarily in the public interest.

16 The Applicant also relied on Town Watch Incorporated v Grafton City Council and Anor (1997) 93 LGERA 401 where Pearlman J took into account, in determining whether litigation was in the public interest, whether there was any evidence of public interest in the matter itself. The Applicant argued that the report prepared by the Council's town planner in relation to the development application, as attached to the affidavit of Mr Thompson, makes it clear that the matter is controversial in the local community with a number of people both supporting and not supporting the proposal.

Finding 17 The Court is able to award security for costs in accordance with s 69(3) of the Land and Environment Court Act 1979 and Pt 53 of the Supreme Court Rules, adopted by Pt 6 r 1 of the Land and Environment Court Rules.

18 Section 69(3) of the Land and Environment Court Act 1979 states: The Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party.

19 Part 53 r 2(1) of the Supreme Court Rules provides that the Court may order a party to give security for costs where inter alia, there is reason to believe that an applicant will be unable to pay the costs of the defendant if ordered to do so. No limitation is placed in Part 53 r 2 of the Supreme Court Rules on the number of applications which may be made by a defendant for security for costs. Section 69(6) of the Land and Environment Court Act 1979 recognises that more than one application for security for costs can be made.

20 In considering an application for security for costs, thise Court must considers not only the matters identified in KP Cable investments set out at par 8 above but also whether there is a public interest in the outcome of the litigation. Of the considerations identified in KP Cable investments, considerations (1), (2), ((4) and (5) are most relevant here. The Respondents's have not raised any contrary submissions in relation to consideration (2) and accept that the Applicant has an arguable case and is bona fide.

21 Given the costs incurred by the First and Second Respondents to date, as attested to in their respective solicitors' affidavits, the current amount paid into the Court for security for costs will not meet all the costs likely to be incurred and awarded if the plaintiff is unsuccessful. If the Applicant is unsuccessful the likely costs order will be that it pay the Respondents' costs, unless the Applicant is able to argue successfully that, due to the public interest nature of the proceedings and other factors referred to in Oshlack, no such order ought be made. It is difficult to say whether such an application, if made, would succeed.

22 Balanced against this consideration is the Applicant's evidence that if the security for costs orders in the amounts sought by the two Respondents are made the Applicant will not be able to raise funds to meet these orders. As set out above, the Applicant has already provided $45,000 in as security for costs. The amounts now sought as security by the two Respondents are $48,000 and $80,000. These proceedings would therefore be permanently stayed if I madke the orders sought, a matter which falls within consideration (4) identified in KP Cable investments.

23 The Applicant is a small incorporated association with only 12 members which was incorporated approximately one two weeks before these proceedings were commenced. The objectives of the Applicant include ensuring that appropriate development occurs in the Upper Lachlan Shire and the Applicant's members are drawn from the small community of Gunning. I consider there is a substantial similarity between the Applicant and the applicant in Razorback. In Razorback Lloyd J held, at par [23], that the case was one involving purely inter-parties litigation. I consider that, given the Applicant's aims and objectives include that of ensuring that the Respondent Council adheres to the relevant planning instruments, and that there is no suggestion that the Applicant's members stand to gain financially from this action, these comments are applicable to the Applicant here. Accordingly, I conclude that this is not a private matter of interest only to the Applicant's members, a matter which is relevant to consideration (5) identified in KP Cable investments. 24 In Razorback Lloyd J ordered that the applicant in that case pay security for costs in the sum of $25,000 in favour of each of the first and second respondents because, while he found it was not private litigation, he considered that the applicant were was exposed to an order for costs in circumstances where there was reason to believe it could not pay the respondents costs if ordered to do so. A claim of public interest litigation alone by an applicant will not be sufficient to warrant that no order as to costs be made in the absence of any other ameliorating factors; Oshlack. Such ameliorating factors were not immediately apparent to Lloyd J in Razorback, where his Honour held the applicant had an arguable but not particularly strong case. 25 It can be inferred from the report prepared by the Council's town planner's in relation to the proposed development and adduced into evidence that the proposal is, for Gunning, a very large one and clearly will be a major landmark if built. The proceedings brought by the Applicant challenge the validity of a consent granted by the First Respondent for a development which is clearly controversial in the Gunning area. However I note that controversy, of itself, does not mean that the proceedings necessarily relate to a matter of public interest.

26 The Another principal basis on which the matter was said to be in the public interest, in addition to the fact that it is controversial, is that the Applicant is seeking to enforce public planning laws. I have set out above at par 15 the other matters raised in argument by Mr Stewart-Richardson to support the Applicant's argument that this matter is in the public interest. The Applicant's Amended Points of Claim also raise issues about heritage protection in the town of Gunning. I agree with the Respondents that the issues raised by the Applicant do not suggest one of the outcomes of the litigation is the protection of the environment for the public good such as was found to exist by McClellan J in Hunter Ecologically Sustainable Employment Sustainable Group where his Honour refused to make any order for security for costs. 27 Consideration (1) identified in KP Cable Investments also needs to be considered. No specific opposition was raised by the Applicant's representative to the Respondents' submissions that there had been no delay in seeking further security for costs, although the point was made by the Applicant that a great deal of cost has been incurred by the respective parties, given the imminent hearing date. Despite this, I have concerns regarding the lateness of this application, given that the case has been set down for hearing on 8, 9 and 10 November 2004 since 27 August 2004 and the bulk of the costs required to prepare for the hearing have already been incurred as evidence has now been prepared and filed. In my view iIt would be highly regrettable if the proceedings had to stop now that preparation for the hearing is almost complete. 28 Taking into account the above factors, I would have been minded to order that the some security sought by the Respondentsfor costs be provided, had no security for costs already been provided by the Applicant. However, given that a substantial sum has already been provided by consent the question is whether further security should be required. I consider a further small amount of $5,000 for each Respondent ought be provided by the Applicant as security for costs. Accordingly I make the following orders: (1) The Applicant to provide additional security for the costs of the First Respondent of and incidental to the proceedings in the amount of $5,000, in a form satisfactory to the Registrar, by 4 November 2004. (2) The Applicant to provide additional security for the costs of the Second Respondent of and incidental to the proceedings in the amount of $5,000, in a form satisfactory to the Registrar, by 4 November 2004. (3) If the security referred to in orders (1) and (2) is not provided by 4 November 2004 the proceedings are stayed. (4) The question of the costs of the Respondents' Notices of Motion is are reserved.

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.

CITATION : Gunning Sustainable Development Association Incorporated v Upper Lachlan Council and Anor [2004] NSWLEC 603 APPLICANT: Gunning Sustainable Development Association Incorporated PARTIES : FIRST RESPONDENT: Upper Lachlan Council SECOND RESPONDENT: Tinvest Pty Limited FILE NUMBER(S) : 40498 of 2004 CORAM: Pain J KEY ISSUES: Practice and Procedure :- Whether further security for costs should be provided Environmental Planning and Assessment Act 1979, s 123 LEGISLATION CITED: Land and Environment Court Act 1979 s 69(3), s 69(6) Land and Environment Court Rules, Pt 6 r 1 Supreme Court Rules, Pt 53 r 2(1) Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd & Ors (2003) 129 LGERA 344; CASES CITED: KP Cable investments Pty Ltd v Meltgow Pty Ltd (1995) 56 FCR 189 ; Razorback Environmental Protection Society Inc v Wollondilly Council & Anor [1999] NSWLEC 8; Town Watch Incorporated v Grafton City Council and Anor (1997) 93 LGERA 401 DATES OF HEARING: 22/10/2004 DATE OF JUDGMENT: 10/29/2004

10 In relation to consideration (4), the Respondents argued that their applications were not oppressive as it was necessary to ensure that, in the event the Applicant was unsuccessful, there was appropriate security for costs. Further, the Respondents argued that the Applicant was not representative of the whole community. Rather, the Respondents argued that the Applicant's two main supporters were Mr Stewart-Richardson and Mr Cook, as evidenced by the fact that it was these two persons and their families who contributed most of the $45,000 which has already been paid into Court as security for costs, and that the purpose of the litigation was for their benefit. The Respondents argued that the Applicant, which was incorporated on 21 April 2004 and has 12 members was formed for the primary purpose of conducting the litigation the subject of these proceedings. This was said to be evidenced by the fact that the proceedings were commenced on 29 April 2004, shortly after the Applicant was incorporated. The Respondents argued that, unlike those considered in the case of Hunter Ecologically Sustainable Employment Group, the proceedings commenced by the Applicant do not seek to protect any aspect of public resource or the public environment. This case has greater similarity to Razorback Environmental Protection Society Inc v Wollondilly Council & Anor [1999] NSWLEC 8 ("Razorback") where an incorporated association was ordered to pay security for costs by Lloyd J. The Respondents argued that the main focus of the Applicant appears to be the prevention of development because the particular members of the Association do not want it.

(2003) 129 LGERA 344

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Cases Cited (6)