Kennedy v Stockland Development Pty Ltd & Anor

Judgment 1Stockland Development Pty Ltd, the First Respondent, has filed a Notice of Motion seeking an order for security of costs in the sum of $20,000 to be provided by the Applicant within 14 days. If not provided an order dismissing the proceedings is also sought. The Applicant opposes the making of the orders. He is represented by an agent, Mr Alan Oshlack. The Second Respondent has filed a submitting appearance. 2The First Respondent is the proponent of Major Project No. 07_0032 for development on land at Sandon Point near Wollongong, (the Sandon Point development). Approval for the Major Project was given by the Second Respondent on 29 November 2009. The Applicant's Summons filed on 29 October 2010, amended subsequently in November 2010, and Points of Claim (POC) allege that the First Respondent has breached various conditions of the Major Project Determination and other sections of the Environmental Planning and Assessment Act 1979 (EPA Act), the Protection of the Environment Operations Act 1997 (PEO Act) in relation to escape of polluted water from the land and the National Parks and Wildlife Act 1974 (NPW Act) in relation to the destruction of the Sandon Point Aboriginal Place. 3On 30 November 2010 I refused the Applicant's Notice of Motion seeking urgent interlocutory orders restraining certain activities on the development site , Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250 ( Kennedy No 1 ). On 10 December 2010, orders were made for the filing of evidence: the Applicant to file and serve any affidavits by 21 January 2011, the First Respondent to file and serve its affidavits in defence by 18 February 2011, the Applicant to file and serve any affidavits in reply by 25 February 2011, the parties to file any documentary evidence by 11 March 2011. The proceedings are listed for a three day hearing commencing 28 March 2011.

Relevant legislation 4Under s 61 of the Civil Procedure Act 2005 (the CP Act) the Court has wide power to make orders it sees fit, whether or not inconsistent with court rules, for the speedy determination of proceedings. Section 62 of the CP Act provides that a court can make orders for the conduct of a hearing, without detracting from the principles of a fair hearing. 5Under Pt 42 r 42.21(1) of the Uniform Civil Procedure Rules 2005 (UCPR) the Court can on the application of a defendant make a security for costs order and stay proceedings until security is given in identified circumstances: (a) that a plaintiff is ordinarily resident outside New South Wales, or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so ... 6None of these subrules apply in the circumstances of this matter. 7Part 51 r 51.50 of the UCPR states that: (1) In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal. (2) Subject to subrules (1) and (3), no security for costs of an appeal is to be required. (3) Subrules (1) and (2) do not affect the powers of the Court under rule 42.21 (which relates to security for costs). This rule is not directly applicable but is relevant to the discussion in cases referred to below. 8Under the CP Act the Court can make rules in relation to costs. Rule 4.2(2) of the Land and Environment Court Rules 2007 (the Court Rules) states that: The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent's costs if it is satisfied that the proceedings have been brought in the public interest.

Affidavit evidence for the First Respondent 9The First Respondent read the affidavit of Robert Wilcher, solicitor representing the First Respondent, sworn 21 January 2011. Mr Wilcher is a partner at Herbert Geer and has over 25 years' experience in conducting litigation in the Land and Environment Court and the Court of Appeal. The history of the proceedings is detailed in par 3 - 11. 10The Applicant and the First Respondent have been involved in numerous proceedings previously relating to the Sandon Point development. In Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service and Anor [2002] NSWLEC 67, the Applicant sought interlocutory relief against the grant of two consents under s 90 of the NPW Act claiming a lack of procedural fairness. Talbot J granted interlocutory relief on 14 February 2002 but after hearing the matter from 20 to 22 March 2002, lifted the injunction and dismissed the application on 2 May 2002. 11A similar claim for interlocutory relief in relation to the grant of another consent under s 90 of the NPW Act was rejected on 13 June 2006: Kennedy v Director General of the Department of Environment and Conservation and Stockland Development Pty Ltd [2006] NSWLEC 325. At the hearing the Applicant argued that the First Respondent breached the consent by failing to comply with a requirement to establish a keeping place within one year. On 26 July 2006, Jagot J dismissed the claim and declined to make substantive orders: Roy Kennedy v Director-General of the Department of Environment and Conservation and Anor [2006] NSWLEC 456. 12In Kennedy (on behalf of Sandon Point Aboriginal Tent Embassy) v Minister for Planning (NSW) and Anor [2010] NSWLEC 129; (2010) 176 LGERA 395 , the Applicant challenged the Minister's Major Project Approval granted on 29 November 2009 on four grounds. On 26 July 2010, Biscoe J rejected the claim and dismissed the proceedings. The Applicant also challenged the validity of the Minister's grant of modifications to the Major Project Approval on 9 August 2010 on two grounds. Biscoe J granted interlocutory relief on 21 September 2010 over a specified section of land: Kennedy v NSW Minister for Planning [2010] NSWLEC 177. The injunction was lifted and the proceedings dismissed on 19 November 2010: Kennedy v NSW Minister for Planning [2010] NSWLEC 240. 13Costs orders made in the above proceedings against the Applicant are detailed in par 18 - 20 of Mr Wilcher's affidavit. 14As at 21 January 2011, the First Respondent has incurred costs and disbursements in these proceedings of approximately $79,126 (excluding GST) which includes costs relating to the First Respondent's Notice of Motion to set aside the Applicant's Subpoena to Produce and Notices to Produce heard by Biscoe J on 24 November 2010 and the Applicant's Notice of Motion seeking urgent interlocutory relief heard by me on 26 and 29 November 2010. Future costs will include the application for security for costs, preparation of evidence and consideration of the Applicant's evidence, pre-hearing preparation and three days of hearing commencing 28 March 2011. The total estimated future legal costs and disbursements is $114,570. If costs were assessed on a party/party basis, Mr Wilcher estimates that costs and disbursements are likely to be recovered in the range of 40 - 60 per cent of the actual costs and disbursements. Accordingly, Mr Wilcher believes that the First Respondent should receive $20,000 or some other sum as considered just for the purposes of the proceedings. 15The Applicant is impecunious and the Sandon Point Aboriginal Tent Embassy, on behalf of which he appears, lacks substantial assets to pay costs at the conclusion of the litigation. Annexed to Mr Wilcher's affidavit and marked "RJW-5" is a copy of the Applicant's submissions on costs filed in Kennedy v NSW Minister for Planning [2010] NSWLEC 269.

Evidence for the Applicant 16The Applicant read two affidavits of Roy "Dootch" Kennedy sworn 28 October 2010 and 1 February 2011 and an affidavit of Alan Oshlack, the Applicant's agent, sworn 22 January 2011. 17The affidavit of Mr Kennedy sworn 28 October 2010, states that he is the Applicant in the proceedings and is acting on behalf of and as spokesperson for the Sandon Point Aboriginal Tent Embassy. Mr Kennedy deposes the affidavit in support of his application for interlocutory orders. Mr Kennedy has been a resident for 10 years at the Sandon Point Aboriginal Tent Embassy on Macauleys Beach which is located in the gazetted area of the declared Sandon Point Aboriginal Place. The Aboriginal Place holds special reverence for all the tribes and families of the Illawarra from the Yuin Nation to La Perouse and beyond because of the Kuradji Burial site and many other significant cultural heritage sites on the land. Mr Kennedy was given authority to go to Court to protect the Kuradji Burial site by Uncle Ted Gubboo Thomas, one of the most senior Lawmen in NSW, about early September 2000. He and other aboriginal peoples use the creek for fishing and harvest some of the plants and reeds for food and fibre. 18On or about 19 August 2010 the Second Respondent commenced clearing and earthworks on an area of the site known as the AIR site west of the Aboriginal Place. On 11 October 2010, Mr Kennedy instructed Mr Daniel Jones, technical assistant from the Embassy, to get water samples tested and tell the Council about the problem. On 15 October 2010, Mr Kennedy spoke to an environmental officer of Wollongong Council who said that there was benzol pollution but that they would only know the amount of the pollution after they received the laboratory results. Mr Kennedy is concerned about the pollution of the natural resources. 19The affidavit of Mr Kennedy sworn 1 February 2011 is made is in response to the Notice of Motion seeking security for costs. Mr Kennedy seeks leave to rely on his affidavit sworn 28 October 2010, his affidavits deposed in previous proceedings in which he challenged the approval and modifications for the development, and those deposed in the costs applications referred to in the affidavit of Robert Wilcher. 20Mr Kennedy's motivation for conducting this and previous litigation is the public interest and he states that this has been recognised by the Court and the Respondents. He and his Embassy staff work to protect the environment and cultural heritage for the indigenous and non-indigenous community. Mr Kennedy is of the view that the Embassy, Aboriginal Place, public land, businesses and residents are in acute danger of adverse flooding impacts damaging property and endangering life. He has observed on many occasions the impacts of flooding and storm surges along Macauleys Beach and at Bulli and Thirroul. Mr Kennedy instructed Mr Oshlack, his agent, to obtain a flood assessment of the impact on the Embassy and downstream properties from the First Respondent. Mr Oshlack told him that an assessment of flood impacts on the Embassy, the Aboriginal Place and other downstream properties does not exist. 21Mr Oshlack deposes in his affidavit sworn 22 January 2011 that he is an agent for the Applicant authorised pursuant to s 63 of the Land and Environment Court Act 1979 (Court Act). The affidavit is sworn in support of the Applicant's Notice of Motion filed 24 January 2011 in which the Applicant seeks: (i)an access order for Mr David Tanner, a retired registered surveyor to access the land and undertake a survey involving measurement pacing, GPS readings and map plotting; and (ii)an extension of time until 15 February 2011 for the Applicant to file his evidence. 22The Applicant requires a surveyor to provide expert evidence in relation to par 3, par 31 - 33 and par 35 of the POC, which allege that the First Respondent is: (i)undertaking works outside the approved concept plan site area (condition A4); (ii)the fact that the whole site was cleared and excavated without staging or limiting works to the five hectare maximum area (condition B13(2); and (iii)clearing the Woodland Creek riparian zone prior to the Second Respondent's approval of the three types of information specified in the condition (condition B37(1), B37(2)). 23The Applicant seeks an extension of time to file evidence in relation to par 3 - 4 and par 36 - 43 of the POC. Mr Oshlack was advised of the following: (i)on 17 January 2011, the Applicant retained the National Measurement Institute (NMI) to analyse water samples; (ii)on 21 January 2011, the NMI provided a sampling kit to the Applicant with containers to sample four different areas upstream and downstream for heavy metals, PAH, phenols, TPH, BTEX, organic carbons, suspended solids, SVOC; (iii)the Applicant will endeavour to deliver the collected samples to the NMI by 27 January 2011. According to the NMI, the turn around time to analyse the samples and provide results to the client is five to ten working days; and (iv)technical officers of the NMI will be available to appear and give evidence in the Land and Environment Court. 24Two further factors have caused delay: (i)Mr Daniel Jones, the Embassy technical officer who advises on environmental assessments and carries out sampling severely broke his elbow before Christmas requiring hospitalisation and ongoing physiotherapy; and (ii)due to the death of his mother on New Years Day, Mr Oshlack has been unable to fully focus on the matter. 25Ms Gough, writer and researcher with the Sandon Point Aboriginal Tent Embassy, gave brief oral evidence to the effect that water samples were collected by her and other people on 27 January 2011. The samples were delivered by her and Mr Oshlack to NMI on 28 January 2011. The cost of having the water samples tested is $1,800.

First Respondent's submissions 26Since the grant of approval by the Minister on 29 November 2009 the Applicant has commenced three different proceedings against the Minister and the First Respondent. In Kennedy v NSW Minister for Planning [2010] NSWLEC 129; (2010) 176 LGERA 395 the Applicant brought proceedings challenging the validity of the Major Project Determination which were dismissed on 26 July 2010. In Kennedy v NSW Minister for Planning [2010] NSWLEC 240 Biscoe J dismissed a challenge to the validity of the modification approvals of the Major Project Determination granted by the Minister under s 75W of the EPA Act on 19 November 2010. 27The Court has power to order security for costs and the relevant principles are identified in Burrell Place Community Action Group Incorporated v Griffith City Council [ 2009] NSWLEC 120 at [12] - [14] per Lloyd J referring in turn to the principles in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 per Beazley J, also in Sales-Cini v Wyong City Council [ 2009] NSWLEC 201 and Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2001) 54 NSWLR 82. Whether a security for costs order ought be made requires the balancing of numerous factors. These suggest in this case an order ought be made. The Applicant is impecunious and the costs which will be incurred are substantial, according the affidavit of Mr Wilcher. If the Applicant is unsuccessful any costs order made in the First Respondent's favour will be futile. The Applicant's impecuniosity has not been caused by the First Respondent or any conduct of the First Respondent. The application has been brought promptly. The motion was filed on 25 January 2011 after the date for the filing of the Applicant's evidence by 21 January 2011. Even if the security for costs order stultifies proceedings, other persons are not precluded from taking action, including any regulatory authority, a relevant factor recognised in Melville per Heydon J (Young CJ in Eq concurring). The Applicant has a history of bringing actions against the First Respondent in relation to the Sandon Point site. 28The Applicant's case is weak given the interlocutory judgment ( Kennedy No 1 ) in which comprehensive affidavit evidence of Mr Michael Braithwaite sworn 24 November 2010, a development manager with the First Respondent, was tendered by the Applicant (becoming exhibit B). That affidavit addressed all the matters raised in the POC and most were not challenged in cross-examination by Mr Oshlack. It provides a complete answer to the allegations in the POC. Not all the grounds in the POC were pressed in the interlocutory injunction application, for example POC par 31 - 33, breach of condition A4, POC par 39, breach of condition B37, POC par 36 - 37, breach of condition B28. These grounds were not pursued because the Applicant was mindful that there was no proper evidence to support these. 29That litigation can be characterised as public interest is not determinative of whether a security for costs order ought be made, see Burrell and Sales-Cini . The public interest is a broad concept and includes a successful recipient of development approval which has been validly given relying on that approval in undertaking work. It is not sufficient to resist a security for costs order that the proceedings be characterised as public interest, they must achieve more such as important questions of statutory construction or raising new legal principles as considered in Burrell at [21] and Sales-Cini at [60]. 30The Court has been able to assess the merits of the Applicant's case in the interlocutory proceedings so that this circumstance is similar to that in Carriage v Stockland (Constructors) Pty Ltd and Anor (No 2) [ 2002] NSWLEC 121 where Talbot J made a security for costs order because the applicant's case was weak. There is still no compelling evidence filed to support the Applicant's case.

Applicant's submissions 31The Applicant is impecunious and the making of a security for costs order in any amount will result in the proceedings coming to an end. The Applicant is an authorised representative of the local aboriginal people as recognised under aboriginal customary law and practice so that it cannot be assumed that there are other aboriginal people who will also be authorised to come forward. There is no third party who can readily come forward and take the action. 32The First Respondent's application has not been brought promptly, there being only eight weeks until the hearing date. The motion is really to prevent the Applicant putting on further evidence from a surveyor, Mr Tanner, as the First Respondent has denied access to the development site to Mr Tanner so that he cannot undertake a survey. That is the reason for the delay in putting on further evidence. The Applicant is actively engaged in collecting further evidence as referred to in Mr Oshlack's affidavit where there is reference to the intended collection of water samples. Ms Gough's evidence confirms that samples were collected on 27 January 2011 and delivered to NMI on 28 January 2011. To have the tests carried out will cost $1,800. This shows the Applicant is in the process of obtaining evidence to support his claim. Further reasons are given in the affidavit as to why there has been delay in providing evidence due to a death in the family of Mr Oshlack and sickness of the embassy technical officer. 33In all the litigation involving the Applicant it has been accepted by the Court that the proceedings were brought in the public interest. This is the reason that costs were limited in the orders made by Biscoe J in Kennedy v NSW Minister for Planning [ 2010] NSWLEC 164 and Kennedy v NSW Minister for Planning [2010] NSWLEC 269 . The application is oppressive because this is public interest litigation. Not all of the issues raised in the summons and POC were considered in Kennedy No 1 . Some of Mr Braithwaite's evidence was hearsay and referred to documents which were not produced. There will be great injustice to the Applicant if he cannot complete the litigation because of a security for costs order being made.

Finding 34The relevant rule under the UCPR in relation to security for costs orders is Pt 42 r 42.21 of the UCPR. None of the recent cases in this Court referred to by the parties have considered r 42.21 where the plaintiff is a natural person who does not come within subrules (1)(a), (b) or (c), which are directed at natural persons. In Sharples v Minister for Local Government [2008] NSWLEC 67; (2008) 159 LGERA 391 security for costs was provided in s 69(3) of the Court Act (now repealed but applying in that case by virtue of savings provisions in Sch 6 Pt 4 of the CP Act). Section 69(3) stated that the Court may order a party instituting proceedings to give security for the payment of costs. The Court's discretion in the Court Act was undefined as s 69(3) did not have pre-conditions such as those identified in UCPR Pt 42 r 42.21. In Burrell the applicant was an incorporated association and held to be a corporation for the purposes of r 42.21(1)(d) and (e). In Sales-Cini , the applicant was a natural person. Pepper J held that the Court had wide power to order security for costs per Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127 another decision of her Honour's which also refers in this regard to Burrell and Sky Design and Concepts Pty Limited v Pittwater Council (No 4) [2009] NSWLEC 129 at [31]. In Burrell Lloyd J referred to the Court's inherent or implied power to order security for costs unconstrained by court rules, per Rajski and Anor v Computer Manufacture and Design Pty Ltd and Ors [1982] 2 NSWLR 443 affirmed on appeal in Rajski and Anor v Computer Manufacture and Design Pty Ltd and Ors [1983] 2 NSWLR 122 in relation to a matter concerning legal aid only. 35Consideration of how the general law on security for costs in relation to impecunious natural persons which preceded the introduction of the UCPR in 2005 in light of r 42.21 is useful. While the Court's power to order security for costs is considered in all the authorities to be wide, it is instructive to consider the circumstances concerning a natural person in Pt 42 r 42.21(1)(a), (b) and (c). The subrules refer to circumstances where an individual plaintiff (in contrast to a corporation) could prevent recovery in the event of a costs order in favour of the defendant such as living outside the jurisdiction and misstating or changing addresses where there is reason to believe a plaintiff is avoiding the consequences of the proceedings. Subsection (1)(d) refers to the circumstance where a plaintiff, being a corporation, would be unable to pay the costs of a defendant if ordered to do so. This subsection is not expressed to apply to a plaintiff who is a natural person, the basis for the First Respondent's application for a security for costs order. 36Further consideration of r 42.21(1) in relation to impecunious litigants is found in the minority judgment of Heydon J in Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd and Ors; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) and Ors [2009] HCA 43; (2009) 239 CLR 75 at [91]. Heydon J identifies that the immunity of impecunious litigants is constrained under r 42.21(1)(a), (b) and (c) where it appears there is intent to avoid a costs order or where under subsection (1)(e) a person is suing for someone else's benefit. His Honour identifies circumstances where security for costs orders have otherwise been made including in vexatious litigation where a plaintiff had not paid previous costs orders and the plaintiff brings a weak case to harass the defendant. Heydon J concluded that the general principle that poverty is no bar to a litigant is severely qualified given the circumstances he referred to. The substantive issue in Jeffery , addressed by the majority, was whether there was abuse of process attracting Pt 42 r 42.3(2)(c) (since repealed) of the UCPR where a litigation funder was funding the proceedings for an impecunious corporate plaintiff. 37General principles concerning an impecunious plaintiff were considered in light of Pt 42 r 42.21 by the Court of Appeal in Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105, the plaintiff liquidator being a natural person. Hodgson JA (Campbell JA concurring, Basten JA dissenting on whether a party being funded by a litigation funder is an additional factor warranting an order for security for costs) discussed the principle applying generally to impecunious plaintiffs that poverty is no bar to a litigant at [24] - [31] referring to Melville per Heydon JA and Young CJ in Eq at [30] - [31]. At [31] he referred to Young CJ in Eq in Melville at [135] - [138] as asserting an underlying principle that security would be ordered where not to do so would allow proceedings which would be vexatious or oppressive or an abuse of the Court's process. At [32] Hodgson JA stated: I have set out above the statutory provisions and rules concerning security for costs operating in the Supreme Court of New South Wales; and in general terms, they tend to support the strand of authority that I am now considering. UCPR 42.21 provides for security for costs in circumstances similar to those which would have been exceptions to the general law rule, apart from the appeals exception; and UCPR 51.50 provides that on appeals, security for costs can in addition be ordered in "special circumstances", but not otherwise. (I note that Cowell and Strand Wood decided in effect that a liquidator suing personally should not generally be treated as within UCPR 42.21(1)(e).) These rules strongly suggest that, in cases other than appeals (appeals being an exception to the general law rule under consideration), security would not be awarded without strong justification, perhaps of the kind referred to by Young CJ in Eq in Melville . 38His Honour noted at [33] - [34] that the Supreme Court does have discretion to order costs against a natural person in circumstances outside the previous Supreme Court rules which he notes are similar to the UCPR, citing Rajski as supporting authority. He then considered at [36] - [40] authorities which have considered there are no rules or practice limiting the discretion to order security for costs, referring to Kirby J in Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; (1998) 193 CLR 502 at [26] and Brennan J in Lucas v Yorke ( 1983) 50 ALR 228 at 229. At [45] - [46] Hodgson JA concluded: In my opinion, on the basis of this review of cases, and especially on the basis of the previous Court of Appeal decisions in Hession and Melville , a court considering applications for security for costs against liquidators should not treat the matter as being entirely at large, but should have regard to guidelines, which I would express as follows: (1) Liquidators suing personally are generally to be treated in the same way as natural persons, so that, on the one hand, costs orders will be made against them if proceedings fail, and, on the other hand, security for costs may be ordered against them when the conditions set out in UCPR 42.21 are satisfied or (on appeal) there are "special circumstances" within UCPR 51.50. Although security for costs can be ordered (at first instance only) in other circumstances, this is not the usual or normal course; and it is relevant that, in order that security for costs be ordered in other circumstances on an appeal, where at general law security was more readily granted, "special circumstances" are required. It is to be noted also that mere inability to meet costs orders does not amount to special circumstances ( Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136) and thus does not of itself put an onus on an appellant to prove that an order for security would stultify the appeal. ... (3) Cases in which security for costs might be ordered against a natural person or a liquidator outside those provided for in UCPR 42.21 include cases where (in addition to proof that there is reason to believe the plaintiff will be unable to pay the defendant's costs) the plaintiff has dissipated assets and/or has not paid previous costs orders (especially if those costs orders were in favour of the defendant) and/or brings a weak case to harass the defendant and/or brings a case for the benefit of others (albeit not solely for their benefit as apparently required by UCPR 42.21(1)(e)). There is of course a sense in which a liquidator is suing for the benefit of others; but what was decided in Cowell and Strand Wood was that this was not of itself sufficient to justify security for costs in relation to a person who has the statutory right and duty to do this. In my opinion, it would be an oversimplification to say that underlying these guidelines is a broader principle that defendants should be protected against being unable to collect costs ordered against plaintiffs unless this would stultify the litigation. Certainly, these are relevant considerations; but in my opinion also relevant are the considerations that there should not be undue inhibitions on less wealthy persons from seeking vindication of their rights against more wealthy persons, and that there could be such inhibitions if it was in every case open to defendants to apply for security for costs on the basis of some evidence (or even on the basis of fishing notices to produce) suggesting inability to pay costs, and to claim that security should be given unless the plaintiff can prove it would stultify the litigation. In my opinion these considerations make it desirable that guidelines be adhered to, even though the question is ultimately for the court's discretion. 39The discussion of principles in Jeffery and Green referred to above suggests that security for costs orders should not be lightly made in the case of an impecunious litigant who is a natural person where their effect would be to stop litigation and the circumstances in Pt 42 r 42.21(1) do not arise, and other special circumstances referred to in the judgments do not apply. I should note for completeness that the fact that the circumstances in r 42.21(1)(a), (b) or (c) arise also does not mean that a security for costs order will be made, those matters being but part of the exercise of discretion by a court whether to make a security for costs order and on what terms. 40These proceedings were commenced pursuant to the open standing provisions in the EPA Act, the PEO Act, and the NPW Act. Additional matters, to which I will refer shortly, must be considered in light of the majority decision in Melville which considered an applicant relying on an open standing provision in the EPA in relation to a security for costs order under s 69(3) of the Court Act. 41Further, at [110] in Melville Heydon JA (in majority) held that cases decided under s 56 of the Federal Court of Australia Act 1976 (Cth) should not be applied on applications for security for costs under s 69(3) of the Court Act. KP Cable which is commonly referred to in this and other courts is such a decision. Lloyd J in Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92 held at [4] - [5] that the principles in KP Cable can be applied as a general guide modified as a result of Melville. Diamond was considered in Sharples at [7]. Section 69(3) of the Court Act has been replaced by r 42.21 of the UCPR and could not therefore be the subject of consideration in Melville . Melville continues to be relevant, but I am also mindful of the change in the applicable court rules relating to security for costs applications. 42The relevant principles in KP Cable identified by Beazley J at 197 - 198 are as follows: ... there are a number of well established guidelines which the court typically takes into account in determining any such application. They are: 1.That such applications should be brought promptly. This is a principle of longstanding: see Grant v The Banque Franco-Egyptienne (1876) 1 CPD 143; see also Smail v Burton; Re Insurance Associates Pty Ltd [1975] VR 776 per Gillard J at 777; Caruso Australia Pty Ltd v Portec (Australia) Pty Ltd (1984) 1 FCR 311 at 313[PDF]; Bryan E Fencott at 514. I should state immediately that there is no issue of delay in this case. 2.That regard is to be had to the strength and bona fides of the applicant's case are relevant considerations: see M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 at 100; Bryan E Fencott at 514. As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success. ( Bryan E Fencott at 514). 3.Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim: see M A Productions v Austarama Television at 100. 4.Whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate: see M A Productions v Austarama Television at 100; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 per Clarke J at 545; Bryan E Fencott at 513. In Yandil Holdings at 545 Clarke J stated the principle in these terms: [t]he fact that the ordering of security will frustrate the plaintiff's rights to litigate its claim because of its financial condition does not automatically lead to the refusal of an order. Nonetheless it will usually operate as a powerful factor in favour of exercising the court's discretion in the plaintiff's favour. This factor is related to the next, namely: 5.Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security: see Memetu Pty Ltd v Lissenden (1983) 8 ACLR 364; Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201[PDF]; Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1[PDF]; Hession v Century 21 South Pacific Ltd (In liq) (1992) 28 NSWLR 120 at 123; Bryan E Fencott at 513; Yandil Holdings at 545. ... Finally, whilst it is both true and important that poverty must be no bar to litigation, what that means is that the courts must be astute to see that no person pursuing a claim which is not frivolous is precluded from doing so by the erection of obstacles which poverty is unable to surmount; it does not mean that proof of insolvency automatically confers an immunity from statutory provisions which deal with insolvent plaintiffs. 6....(not applicable) 7....(not applicable) 43These principles have been considered and applied in numerous cases in this Court including Diamond, Burrell , Sharples and Sales-Cini which the parties referred to. The principles in KP Cable were addressed by the parties. The parties disputed how some of the principles apply to the circumstances of this case. There is no dispute that the Applicant is impecunious and cannot meet the security for costs order sought by the First Respondent. Mr Oshlack submitted that the proceedings will not proceed if the security for costs order is made, which submission I accept in light of the Applicant's financial position. 44Firstly, in relation to whether the application for security for costs has been brought promptly, contrary to the Applicant's submission I consider the application has been brought promptly and there is no delay in light of the history of the proceedings. Proceedings were commenced on 29 October 2010, some evidence was filed and relied on in the interlocutory application, determined on 30 November 2010. The Applicant was required to file additional evidence by 21 January 2011 and has not. The motion seeking security for costs was filed shortly thereafter (25 January 2011) in order that all the Applicant's evidence could be considered before it was filed. The hearing is still some eight weeks away. In argument in Sales-Cini at [50] the strength of the applicant's case through assessment of the evidence filed was submitted to be necessary and earlier filing of the application for security for costs was premature. At [52] Pepper J considered the application was not tardy in waiting until the strength of the applicant's case could be assessed. The same consideration applies in this matter. 45Secondly, the strength of the Applicant's case is disputed. The amended summons seeks a number of declarations and orders and the POC raises a number of grounds of challenge. Not all were considered in the interlocutory application the subject of Kennedy No 1 as not all were relied upon in that application. The amended summons seeks declarations and orders in relation to: (i)the construction certificate to the effect that work has been carried out in breach of Part B prior to issue of construction certificate (prayer 1); (ii)that the construction certificate is null and void (prayer 2) ; (iii)work undertaken between 9 September 2010 and 7 October 2010 was done without a valid construction certificate as approval of the Second Respondent had not been given under condition B37(1) (prayer 3); (iv)work undertaken between 1 January to 1 September 2010 was done without a valid construction certificate (prayer 3A); (v)conditions of consent A4 and s 76A of the EPA Act were breached because work was undertaken on public land outside the approved concept plan (prayer 3B); (vi)condition B13(2) was breached due to the failure to limit earthworks to a 5 hectare maximum area (prayer 4); (vii)conditions B45 and B46 were breached by undertaking extensive clearing work without regard to retaining vegetation (prayer 4A); (viii)condition B31 was breached by failing to ensure there were no adverse effects to adjoining land resulting from flood or stormwater run off (prayer 4B); (ix)conditions B28(a) and (b) were breached because this was purportedly undertaking stormwater and drainage work without relevant approvals from Wollongong Council (prayer 4C); (x)s 116(1) of the PEO Act has been breached by the wilful or negligent disposal of substances harmful to the environment from the land (prayer 5); and (xi)s 86(4) of the NPW Act has been breached causing harm and desecration to the Sandon Point Aboriginal Place (prayer 6). 46In Kennedy No 1 I made a finding at [32] that there was no serious question to be tried because the Applicant had not established that there was any illegal work undertaken before the construction certificate was issued on 8 September 2010 (prayers 1 and 3A). Further at [33] there was no evidence of illegal clearing of vegetation in breach of condition B13(2) which limits the excavated area to 5 hectares (prayer 4). Further, no breach of conditions B45 or B46 was established (prayer 4). Further at [35], no breach of the development consent conditions of the Major Project Determination was demonstrated. Further the Applicant did not establish that polluted water was escaping from the site in breach of s 116 of the PEO Act or in breach of s 86(4) of the NPW Act at [36] - [37] (prayers 5 and 6). 47Issues raised in the summons and POC not considered in the interlocutory hearing were whether the work was undertaken on public land outside the approved concept plan in breach of condition A4 (prayer 3B), whether condition B31 was breached (prayer 4B), whether stormwater and drainage works were undertaken without the necessary approval of Wollongong Council in breach of conditions B28(a) and (b) (prayer 4C) inter alia. It is difficult to come to a preliminary conclusion on the strength of all aspects of the Applicant's case as I have not had to consider all the matters the subject of the summons and the POC. While the First Respondent submits that the case is weak as all the issues raised in the POC are addressed in Mr Braithwaite's affidavit sworn 24 November 2010 read (by Mr Oshlack) in the interlocutory hearing, I was then focussed only on those matters raised by Mr Oshlack and did not address my mind more generally to Mr Braithwaite's affidavit. 48Nor do I conclude that the case is weak as the First Respondent submits. The grounds as disclosed in the pleading appear generally arguable on their face. Mr Oshlack is also seeking to file on the Applicant's behalf additional evidence which he hopes will establish the Applicant's case in relation to matters which I considered on a preliminary basis only in Kennedy No 1 . Findings made on an interlocutory application which of necessity are based on incomplete evidence and submissions are not conclusive of the outcome at a final hearing. 49Thirdly, the impecuniosity of the Applicant has not resulted from the First Respondent's conduct. 50Fourthly, from the Applicant's perspective the application is oppressive as it will deny him the opportunity to litigate these proceedings. Mr Kennedy is an aboriginal man from the Sandon Point area seeking to protect the Sandon Point Aboriginal Place, an area of significant aboriginal cultural and physical heritage for local aboriginal people as he attests to in both his affidavits. The significance of this area is further recognised by the gazettal of this area under s 84 of the NPW Act whereby the Minister can gazette an area of special significance to aboriginal culture. It is an offence under s 86(4) to harm or desecrate an aboriginal place. 51Fifthly, there is no evidence that any person is standing behind the Applicant who will benefit in a material way from the litigation. I note this principle in KP Cable refers to whether there are persons standing behind a company. 52In Melville the Court of Appeal considered the position of an impecunious applicant in the context of the open standing provision in the EPA Act, s 123. Heydon JA (Young CJ in Eq concurring) held at [109] that an order for security for costs against an impecunious natural person bringing proceedings under such an open standing provision does not deprive the person of any fundamental right where others might also prosecute the case under the open standing provision. Stein JA in dissent at [23] - [24] held that a security for costs order against an impecunious natural person did deprive that person of a fundamental right. 53Mr Oshlack submitted that there is no other aboriginal person who is able to come forward and pursue the issues raised in the litigation as the Applicant alone was authorised by the local aboriginal elder Uncle Ted Gubboo Thomas to take this action. I do not have evidence to support that submission from the Applicant or Mr Thomas. In Carriage No 2 at [13] I stated that practical impediments to pursuing litigation mean that a court cannot be certain that another litigant will always come forward to remedy a breach of public law. In Sharples at [13] Biscoe J considered that the nature of the issues and the burden of litigation meant it was unlikely that anyone else would be prepared to conduct that case if the applicant did not. Similar considerations apply here given the issues at stake and the identity of the Applicant. I take into account that it is not certain that another aboriginal community member is likely to come forward and pursue this litigation in the event that a security for costs order is made given the burden of litigation. 54Under r 4.2(2) of the Court Rules the Court can decide not to make a security for costs order if satisfied the proceedings have been brought in the public interest. The public interest is a wide concept and cases such as Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 per McHugh J at [71] - [75] have identified the difficulty of defining it. It is a concept often considered in this Court and the Court Rules contain specific provisions concerning costs in public interest matters. Here there is no dispute that the Applicant is motivated by public interest considerations in undertaking this litigation as identified above at par 50. This is confirmed by his two affidavits read on the motion and summarised above in par 16 - 20. A relevant consideration is also that there is no evidence that Mr Kennedy will gain any financial or other personal benefit from the litigation. 55In Melville at [130] Heydon JA noted that no significance was placed on whether the litigation was public interest in nature so that was not a factor considered in that case. Sharples was an action founded on s 674 of the Local Government Act 1993. Biscoe J referred to the principle of access to justice at [8] to the effect that the principle of access to justice trumps mere poverty. Biscoe J then referred to the majority in Melville concerning the effect of open standing provisions in relation to security for costs applications. Whether the litigation was brought in the public interest does not appear to have been raised as a relevant factor in argument. 56Burrell , Sales-Cini and Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217; (2002) 123 LGERA 214 inter alia have considered security for costs in the context of public interest matters. The First Respondent submitted that it is not sufficient to claim that proceedings are brought in the public interest in order to avoid a security for costs order relying on the approach taken in Burrell at [21] adopted in Sales-Cini at [60]. In Burrell Lloyd J at [21] referred to r 4.2(2) of the Court Rules whereby the Court may decide not to order an applicant to give security for costs if satisfied the proceedings have been brought in the public interest. His Honour then observed that the application of the usual costs rule was that costs follow the event under s 98 of the CP Act and r 42.1 of the UCPR. In order to justify a departure from the usual costs order in a public interest matter, it is necessary for there to be additional factors demonstrated. This reasoning was applied in his Honour's consideration of whether a security for costs orders ought be made. 57The costs issue before me is whether a security for costs order ought be made. It is not apparent why the considerations applying to awarding costs in public interest cases once proceedings are completed apply at the stage of deciding whether or not to grant a security for costs order. There has yet to be a final determination of the issues as between the parties. A preliminary finding at this early stage about whether matters justifying a departure from the usual costs rule that costs follow the event if the proceedings are ultimately unsuccessful does not appear material. In Melville both the majority (at [111] - [113] and minority (at [26] - [28]) judgments considered there was an error on the part of the primary judge in holding that an application for security for costs was no different to an application for costs. As Stein JA stated the outcome of the litigation is central to the consideration of what final costs orders ought be made. For the same reason, I do not consider I should adopt the approach in Burrell at [21] in this regard. Sales-Cini was effectively an ex tempore judgment delivered the day after argument where the applicant was not represented by a lawyer and it does not appear that Pepper J's attention was drawn to this aspect of Melville. I surmise her Honour did not have the opportunity to consider the issue in the terms before me. 58Consequently, I am satisfied that the Applicant's claim to be acting in the public interest is genuine, the evidence suggests that claim is justified and is not disputed. This is another factor to consider amongst the others identified in this judgment. My observation in Carriage No 2 at [15] applies in these circumstances to the effect that: Where ... the broad interest asserted as the motivation for taking the proceedings is the protection of community property and cultural heritage ... I do not think the Court should lightly make an order for security for costs which, if made, is likely to bar these proceedings. 59I accept the submission of the First Respondent's counsel that the public interest is a wide concept and includes the pursuit of orderly development in accordance with a validly approved development consent. In this case, the Applicant was unsuccessful in his interlocutory injunction application preventing work being undertaken in pursuit of that consent. At this stage there is no order in force preventing the First Respondent undertaking work in conformity with the Major Project Determination. The matter is proceeding expeditiously and has been set down for hearing on 28 March 2011 so that is likely the proceedings can be resolved sooner rather than later. 60At [131] in Melville Heydon JA noted that an additional relevant factor in proceedings relying on an open standing provision might be that the impecunious applicant lives close to the development under scrutiny as opposed to someone living many miles away motivated simply by a desire to enforce the law. Such a consideration applies in this case. I take into account that the Applicant lives at the Sandon Point Aboriginal Tent Embassy in the Sandon Point Aboriginal Place. The Sandon Point Aboriginal Place is downstream from and in close proximity to the Sandon Point development site which is a relevant matter because this suggests the Applicant's interest is more than a motivation to enforce the law. 61Mr Oshlack sought to provide an explanation as to why the Applicant's further evidence is delayed through his affidavit and the oral evidence of Ms Gough. This raises a separate issue relevant to what the justice of the circumstances demand. I have evidence that water samples have been taken very recently and submitted for testing after the date the Applicant's evidence was due on 21 January 2011. Other circumstances to explain the delay include the death of a family member of Mr Oshlack and an accident of the Embassy technical officer. I note that the First Respondent has denied access to a surveyor, Mr Tanner, in mid-January 2011, another impediment to the Applicant filing further evidence and the subject of a Notice of Motion I have yet to hear. This evidence confirms that the Applicant is actively pursuing the matter through the preparation of evidence albeit later than the timetable set by the Court. 62I must weigh up all these factors in light of the fundamental purpose of the security for costs power which is to secure justice between the parties, principally by ensuring that unsuccessful proceedings do not occasion injustice to a respondent per Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date (loose-leaf service at Service 52, January 2011), "Uniform Civil Procedure Rules", at [42.21.5]. See also Lucas v Yorke at 228 - 229 in which Brennan J adopted Rich J's approach to an application for security for costs in King v Commercial Bank of Australia Ltd [1920] HCA 62; (1920) 28 CLR 289 at 292. 63A brief summary of the numerous factors discussed above, firstly suggesting that no order ought be made, are that none of the circumstances in Pt 42 r 42.21(1) concerning natural persons arise in this case, a security for costs order will stop the Applicant pursuing the litigation as he is impecunious, the Applicant is acting for the benefit of aboriginal people in the Sandon Point area and by extension the wider community and lives in the immediate area of the development, the case appears arguable on its face and the Applicant wishes to present additional evidence to the Court beyond the evidence relied on in the interlocutory hearing. Factors suggesting an order ought be made are that the application is timely, there have been other unsuccessful proceedings challenging different aspects of the Sandon Point Development by the same Applicant which have resulted in limited costs orders against him, if the Applicant is unsuccessful and a costs order is made against him in favour of the First Respondent, the First Respondent is unlikely to recover any of the substantial costs incurred by it in defending the proceedings. Balancing all these factors in the interests of justice the First Respondent's application for a security for costs order ought be refused.

Orders 64The First Respondent's Notice of Motion filed 25 January 2011 is dismissed.

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