Kennedy v NSW Minister for Planning

KEY ISSUES: COSTS :- public interest litigation in class 4 proceedings - relevance of impecuniosity of unsuccessful applicant

Civil Procedure Act 2005, s 98 LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 75W, Pt 3A Land and Environment Court Rules 2007, r 4.2 Uniform Civil Procedure Rules 2005, r 42.1

Arnold v Minister Administering the Water Management Act 2000 (No 4) [2009] NSWLEC 87 Board of Examiners v XY [2006] VSCA 190 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59, 173 LGERA 280 Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155, 176 LGERA 20 CASES CITED: Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 Kennedy v Director-General of the Department of Environment and Conservation (No 2) [2007] NSWLEC 271 Kennedy v NSW Minister for Planning [2010] NSWLEC 129 Kennedy v NSW Minister for Planning [2010] NSWLEC 240 Oshlack v Richmond River Council (1994) 82 LGERA 236 Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212

APPLICANT: Mr Alan Oshlack, agent

FIRST RESPONDENT: Dr J Renwick LEGAL REPRESENTATIVES: SOLICITORS: NSW Department of Planning

SECOND RESPONDENT: Mr J Robson SC with Mr H El-Hage SOLICITORS: Herbert Geer

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT INTRODUCTION 1 HIS HONOUR: The applicant is an Aboriginal man who, on behalf of the Sandon Point Aboriginal Tent Embassy, unsuccessfully challenged the validity of two requests to modify a Major Project Approval at Sandon Point under s 75W of the Environmental Planning and Assessment Act 1979 (EPA Act): Kennedy v NSW Minister for Planning [2010] NSWLEC 240. The modification requests were granted by the first respondent, the NSW Minister for Planning, to the second respondent, Stockland Developments Pty Ltd. 2 Both the Minister and Stockland now seek orders that the applicant pay their costs of the proceedings. The applicant opposes these orders. Instead, the applicant submits that the respondents should pay the out of pocket expenses of the applicant's agent, being $200. The applicant relies on the public interest nature of the litigation and the fact that he is impecunious. 3 The challenge to the modification approvals was on five grounds. First, the Minister failed to consider the protection of Aboriginal cultural heritage as recommended in three reports. Secondly, the Minister failed to consider Aboriginal artefacts. Thirdly, the Minister failed to consider the principles of ecologically sustainable development. Fourthly, the decision was manifestly unreasonable. Fifthly, the applicant was denied procedural fairness. COSTS AND PUBLIC INTEREST LITIGATION 4 The usual costs rule in Class 4 proceedings such as these is that costs follow the event: r 42.1 Uniform Civil Procedure Rules 2005 (UCPR). However, the applicant submits that the usual rule should not be followed as the litigation was brought in the public interest. Rule 4.2(1) of the Land and Environment Court Rules 2007 provides: " 4.2 Proceedings brought in the public interest

(1) 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." 5 A three step approach has been developed to determine whether to depart from the usual costs rule and make no order as to costs under the public interest provision in r 4.2(1). First, can the litigation be characterised as having been brought in the public interest? Secondly, if so, is there something more than the mere characterisation of the litigation as being brought in the public interest? Thirdly, are there any countervailing circumstances, including in relation to the conduct of the applicant which speaks against departure from the usual costs rule? See Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59, 173 LGERA 280; Gray v Macquarie Generation (No 2) [2010] NSWLEC 82; Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155, 176 LGERA 20. 6 As for the first step, the Minister and Stockland do not contest, and I find, that the proceedings were brought in the public interest. Sandon Point is a culturally significant area for Aboriginal people, containing numerous Aboriginal artefacts. The proceedings were brought to uphold public law obligations under the EPA Act and to ensure the Minister's exercise of power under Part 3A was lawful. 7 As for the second step, in Caroona Preston CJ at [60] identified at least five categories of cases containing additional factors justifying departure from the usual costs rule:

(1) the litigation raises one or more novel issues of general importance; (2) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law; (3) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance; (4) the litigation affects a significant section of the public; and (5) there was no financial gain for the applicant in bringing the proceedings. 8 The applicant submits that categories 1, 2, 3 and 5 are satisfied as the case raised a novel issue in relation to the construction of s 75W of the EPA Act, the observations in the judgment on compliance with the Director-General's Environmental Assessment Requirements will assist in the future understanding of the application of Part 3A of the EPA Act, the case was brought to protect Aboriginal cultural heritage, which is of significant value and importance to Aboriginal people and the applicant did not stand to gain financially by bringing the proceedings. The applicant also submits that like the case of Oshlack v Richmond River Council (1994) 82 LGERA 236 the proceedings concerned "a publicly notorious site amidst continuing controversy" and the applicant had the worthy motive of seeking to uphold the law and protect Aboriginal cultural heritage and the environment. 9 The respondents submit that the proceedings do not involve "something more" as (a) the applicant's case failed on all grounds; (b) the applicant's case was an application for merits review clothed in various grounds of judicial review; (c) the grounds of challenge were untenable and at least some of them were hopeless. The first three grounds were highly unlikely to succeed in light of the material in the Director-General's Report, whilst the last ground of denial of procedural fairness was inherently flawed given that the applicant was personally notified of the modification requests and invited to comment; and (d) the proceedings did not raise any novel issues of general importance and will not contribute, in any material way, to the proper understanding, development or administration of the law. The grounds raised by the applicant were decided by reference to orthodox and established judicial review principles, many of which had been raised and dealt with in the prior proceedings involving the applicant's challenge to the Major Project Approval: Kennedy v NSW Minister for Planning [2010] NSWLEC 129. 10 I find in relation to the first, second and third grounds of challenge that they did constitute something more than the mere characterisation of the proceedings as being brought in the public interest. They highlighted important differences between the Part 3A modification approval regime and the Part 3A project approval regime and the modification provisions found in Part 4 of the EPA Act. They also highlighted that the public interest is a mandatory consideration in considering a modification request under s 75W of the EPA Act and that Aboriginal heritage and the protection of Aboriginal artefacts is an aspect of the public interest. The proceedings materially contributed to an understanding of the level of particularity to which the Minister must consider the public interest, including principles of ecologically sustainable development, which is an issue of general importance. 11 I find that the final two grounds of challenge do not satisfy the second step in the three step approach. Ground four was concerned with whether the Minister's decision was manifestly unreasonable. It was a very weak ground and was decided shortly by reference to well-established judicial review principles. The applicant's fifth ground, denial of procedural fairness, was doomed to fail given that the applicant was personally notified of the modification requests and invited to make a submission. 12 In relation to the third step, countervailing circumstances, Stockland submits that the applicant's failure to make a submission is an important consideration which suggests that the usual rule as to costs should apply. Stockland points out that instead of making a submission the applicant chose to commence proceedings challenging the Minister's decision. Stockland argues that there is no evidence of the applicant making any attempt to communicate his concerns with the respondents prior to commencement of the proceedings and the respondents were afforded no opportunity to address the applicant's concerns other than by defending the proceedings, which Stockland claims were in large part an attack on the merits of the Modification Approvals. 13 The applicant acknowledges that he did not make a submission in his personal capacity. However, the applicant points out that at the time he was the Chairperson of the Illawarra Aboriginal Land Council, which did make a submission that the applicant claims was ignored. According to the applicant he did participate but "again the power of the State, richly endowed developers and a regime of discriminatory laws has once again overwhelmed the aspirations of an Aboriginal person seeking protection of Aboriginal heritage". 14 In my opinion, even if the applicant did not make any submission on the proposed modifications, this is no countervailing circumstance which speaks against departure from the usual rule as to costs. A submission generally goes to the merits of a proposal, whereas the proceedings challenged the lawfulness of the Modification Approvals. If an applicant chooses not to comment on the merits of a proposal this should not preclude them from calling into question the legality of the proposal for fear of an adverse costs order. The merits and legality of a decision are two completely separate issues. 15 I acknowledge the respondents claim that much of the applicant's challenge was an attack on the merits of the Modification Approvals. However, while some merits issues were raised in the proceedings this was in the context of challenging the legal validity of the Modification Approvals.

IMPECUNIOSITY 16 The applicant submits that the fact that he is impecunious is a relevant consideration for the Court to take into account in exercising its discretion as to costs. The Court has a wide discretion as to costs found in s 98 of the Civil Procedure Act 2005 which provides: " 98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid…" 17 Absent special circumstances, inability to meet a costs order is an insufficient reason of itself to deprive a successful party of its costs: Board of Examiners v XY [2006] VSCA 190 at [34]; Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [4] (FC); Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 at [5] (FC); Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 (FC); Arnold v Minister Administering the Water Management Act 2000 (No 4) [2009] NSWLEC 87 at [14]; Kennedy v Director-General of the Department of Environment and Conservation (No 2) [2007] NSWLEC 271 at [19]. I am unaware of any case in which special circumstances were held to be such that the inability of a successful party to meet a costs order led to a costs order not being made. The possible relevance of impecuniosity in public interest proceedings was considered in Board of Examiners v XY at [34]: "There may be exceptional circumstances that make a particular party's financial position relevant to the exercise of the costs discretion. For instance, the proceeding may have been brought by it in the public interest pursuant to legislation that evinces the intention of redressing, by way of an appropriate costs order, any serious inequality in resources between the claimant and the entity that resists the claim. Thus, in Oshlack, Kirby, J. said, in the context of the legislative provisions under which the proceeding in that case was brought, that any inequality that may be said to exist where the successful council is deprived of its costs "is simply one designed to redress, in the appropriate case, the serious inequality in resources which typically (but not always) applies in the case of litigation commenced in the public interest between an objector and the public or private body resisting the objector's demands". But his Honour was effectively dealing with the argument that there would be relevant inequality if the successful council were to be deprived of its costs where the unsuccessful proceeding had been instituted in the 'public interest'. Be that as it may, it is plain enough that this is not the case here. Moreover, no such legislative provisions exist here and the contrary was not contended for by the respondent's counsel. Consequently, in terms of principle, given the absence of exceptional circumstances, I can see no basis for considering that Ms XY's financial stress was a relevant consideration in the exercise of the costs discretion." 18 In this case the proceedings were brought in the public interest by an Aboriginal man who has been fighting against the State and developers to protect Aboriginal cultural heritage at Sandon Point for many years. As he is impecunious, there appears to be no reasonable prospect of the respondents recovering their costs. In the context of r 4.2 of the Land and Environment Court Rules, I do not think that these circumstances, of themselves, are sufficient to justify no costs order, but I do think that they are sufficiently special as to reinforce the conclusion that there should be no costs order in relation to the first, second and third grounds of challenge.

OTHER MATTERS 19 The applicant's submissions include allegations of falsehood and perjury which find no support in the evidence and which attempt to re-agitate issues that have been decided. Those submissions should not have been made and I have given them no weight.

ORDER 20 Accordingly, I order the applicant to pay 20 per cent of the respondents' costs, representing my broad estimate of the incremental time apportioned to the two grounds which did not fall within the public interest exception.

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.