[2008] NSWLEC 272
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84
Source
Original judgment source is linked above.
Catchwords
[2008] NSWLEC 272
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: Immediately following the conclusion of the hearing on 15 March 2019, the Court dismissed the appeal. On 12 April 2019, the Court provided reasons for those orders: Local Democracy Matters Incorporated v Infrastructure NSW [2019] NSWCA 65. The orders made on that occasion made provision for submissions on the question of costs in the event that agreement could not be reached. Agreement has not been reached and submissions have been filed substantially in accordance with that timetable (the most recent submission was filed on 13 May 2019).
It should be noted at the outset that the costs in question are the party-party costs incurred by the respondents, in an appeal which was filed on 7 March 2019 and was finally heard and disposed of 8 days later on 15 March 2019. The issues on appeal resembled those which had been advanced at trial (although at trial other points were also advanced). One respondent submitted. The other three played active parts, with two retaining senior counsel, although primary carriage of the respondents' submissions on appeal was left to the Minister. On any view of the matter, the respondents' costs in this Court must be very substantially less than their costs at first instance, where there were two contested interlocutory injunctions and a three day final hearing.
One other matter of timing may be mentioned, so as to put context to the submissions. The State election was held on 23 March 2019, and the decision whether to demolish the stadium and rebuild it became a political issue. That said, the issues in this litigation, confined as they were to the lawfulness of the decision-making process, were much narrower.
The appellant (LDM) submits that there should be no order as to costs. It recognises that such an order is a departure from the order ordinarily made, pursuant to UCPR r 42.1, but maintains that because the litigation was in the public interest, such a departure is warranted. Each of the three active respondents has filed submissions submitting that LDM should pay its costs. Infrastructure NSW has adopted, and the Minister has partially adopted, the submissions of the second respondent on costs. The second and third respondents, Sydney Cricket and Sports Ground Trust and the Minister, each deny that the appeal was brought in the public interest, and further submit that even if the appeal is considered to be in the "public interest", it remains inappropriate to depart from the usual rule.
The first respondent, Infrastructure NSW, sought leave to rely upon two solicitor's affidavits. LDM did not oppose that course. The first was sworn on 13 March 2019, shortly before the hearing. The second was sworn on 26 April 2019. The first is 158 pages, the second 73 pages. The volume of the material is directed to corporate and financial records of LDM, and statements made on social media by individuals associated with it. Some post-date the Court's decision. Infrastructure NSW makes the general submission that "the primary consideration of the Appellant in bringing these proceedings was political", and the "overall tenor and tone of the Facebook posts are not directed to the protection of the environment but to the political process". The evidence further establishes that the primary objects of LDM are to protect local democracy in the Woollahra, Waverley and Randwick local government areas, reflecting the fact that it was brought into existence in connection with proposals to amalgamate those areas. The stadium project itself is located within the City of Sydney local government area.
The materials suggest that LDM has very little funds in at least one of its bank accounts (which is to say, less than $1,000), and one of the entries, a credit in the amount of $2,000 described as "Loan for Filing and Ancillary" which is recorded as the same day as a court filing fee was withdrawn, suggests that there is existing debt which exceeds the balance. It is not clear from the material whether LDM owns other assets, or has other liabilities.
LDM disputes that the proceedings were commenced for political purposes, and maintains that they are properly regarded as having been brought in the public interest.
However, it is common ground between all active parties that even if the litigation was initiated in the public interest, "something more" must be present in order to "justify departure from the usual cost rule": Caroona Coal Action Group v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 at [56]. That is to say, it was common ground that this was not a case where the public interest was such that it was of itself of such moment or magnitude as to justify a departure from the usual rule: cf the examples given in Anderson v Minister for Planning (No 2) (2008) 163 LGERA 132; [2008] NSWLEC 272 at [10]-[11] of litigation to uphold the liberty of the subject in time of war or litigation to stop or limit the development of one of the last habitats of an endangered species. That concession was properly made.
This Court said in People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 at [40]:
"Even assuming the proceedings were properly to be characterised as amounting to 'public interest litigation' (and there is scope for debate about this), as already noted that does not of itself warrant a departure from the general rule. As Bennett J observed (at [45]) in Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864, 'public interest and an arguable case are not necessarily decisive and not, of themselves, sufficient to prevent the usual costs order being made'. The appellant has not demonstrated that this appeal involved 'something more' than the mere fact of the litigation having the character of 'public interest litigation'.
Accordingly, LDM assumed the burden of seeking to establish "something more". It is convenient to turn immediately to this, and to pass over the detailed submissions and evidence (to parts of which Infrastructure NSW objected) directed to whether the litigation was in the public interest.
LDM identified the five factors which were stated in Caroona Coal Action Group v Coal Mines Australia Pty Ltd (No 3) as contributing to the requisite "something more":
"a) the litigation raises one or more novel issues of general importance;
b) the litigation contributed, in a material way, to the proper understanding,
development or administration of the law;
c) where litigation is brought to protect the environment or some component
of it, that environment or component is of significant value and importance;
d) the litigation affects a significant portion of the public;
e) there was no financial gain for the applicant in bringing the proceedings." (Citations omitted)
The first two matters may conveniently be addressed together. LDM's submissions on appeal based on design excellence and contamination were applicable only to this particular approval process. The submissions based on the exhibition period turned upon an elaborate argument involving the transitional provisions which, likewise, is not generally applicable. It is true that there were elements of novelty in the submissions, especially in relation to the exhibition period. However, as was said in Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 at [17]:
"[B]y the very nature of our adversarial common law tradition, the success of one party in proceedings will often, if not inevitably, entail a clarification of the law to some extent or in some respect. In that light, it is hard to see how clarification of the law could amount to a factor tending strongly in favour of a departure from the usual rule as to costs."
Further, all those points had been resolved by the reserved decision at first instance. As Hodgson JA said in Kindimindi Investments Pty Limited v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38 at [52]:
"… considerations associated with the bringing of proceedings in the public interest may weigh less heavily in appeal proceedings than in first instance proceedings".
That passage was applied by Beazley P in Hunter Development Corporation v Save Our Rail NSW Incorporated (2016) 220 LGERA 73; [2016] NSWCA 375 at [70].
Turning to the third point, while it may be accepted that protection of the urban environment may qualify as protection of the environment, it is difficult to see that the demolition of one (modern) stadium and its replacement by another is sufficient to engage this criterion. It may also be accepted that there was no financial gain for LDM bringing the proceedings, but that of itself is insufficient to warrant a departure from the rule. No separate submissions were made to the effect that the litigation affected a significant portion of the public.
Further, it is to be borne in mind that the appeal was dismissed instanter. In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; 280 ALR 91 at [23], the Full Court concluded:
"Finally, a factor to be given some weight, in our view, is that while the appeal was arguable (and well argued), it could not be thought to have strong prospects of success. There was a carefully reasoned judgment at first instance. The appeal, while listed and heard urgently, was dismissed instanter. It would be a significant burden on scarce public resources if every 'public interest' body were open to run unconvincing appeals free of any costs risk. As a matter of public policy, that course is to be discouraged."
We do not accept that a proper basis has been established for there to be no order as to costs of the appeal.
That is not an end to the matter. Should LDM be ordered to pay more than one set of the respondents' costs? The issues arising on the appeal were narrowly circumscribed. Save for the question of discretion, they were pure questions of law or inferences to be drawn from documents. While each of the four respondents was a necessary party, their interests very substantially overlapped, if indeed they were not relevantly identical. As much became plain in the running of the appeal, where senior counsel for the third respondent assumed primary carriage of the argument.
It is also to be borne in mind that the orders from which the appeal was brought were made on 6 March 2019, and that interlocutory relief had been extended by the primary judge until 8 March: see Local Democracy Matters Incorporated v Infrastructure NSW (No 3) [2019] NSWLEC 22. A final hearing took place in this Court on 15 March 2019, a week after the appeal was filed. The submissions of LDM essentially mirrored those which had been made without success before the primary judge.
It may be that no submissions were made on the point because whether LDM is ordered to pay the costs of one or more than one respondent is a matter of indifference to LDM, having regard to its lack of assets. However, even so the discretion as to costs should be exercised in accordance with principle. In Statham v Shephard (No 2) (1974) 23 FLR 244 at 246, Woodward J stated the general principle that, subject to certain provisos, "the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases". That principle has regularly been applied in this Court, including for example in Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153 at [6] and HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79 at [8]. It is applicable to the present case.
As Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]:
"underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs."
In HP Mercantile Pty Ltd v Hartnett at [14] this Court said that:
"the ultimate question is not (as the respondents submit) whether they have acted reasonably, nor whether there has shown to be duplication. The question is whether it is reasonable for the unsuccessful litigant to bear more than one set of costs."
We do not think it is reasonable for the unsuccessful appellant to bear three sets of costs of an appeal which was so tightly confined both in terms of the three grounds and also in terms of the timing. The appropriate order is one that reflects the actuality of the litigation, which was very substantially carried by the Minister.
The effect of the Court's order will be that LDM will not be liable to pay the costs of the first and second respondents. (The position of the fourth respondent may be put to one side; it is entitled only to the costs of a submitting appearance.) There is some basis for a submission that the first and second respondents may be entitled to obtain a fraction of any costs actually recovered by the Minister as a partial indemnity for their own costs. No submissions were made on that point, perhaps for the good reason that the issue is of no moment. It may also be that there is an agreement or understanding between the respondents of which the Court is unaware. However, if any party wishes to be heard as to any further order as to costs as between the active respondents, that party may apply within the time provided by UCPR r 36.16 for such an order.
The Court orders that the appellant LDM pay the Minister's costs of the appeal.
[3]
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Decision last updated: 23 May 2019