JUDGMENT
1 Talbot J: Following its success in persuading the Court to dismiss the claim by No Dump Residents Association Inc ("the applicant"), Collex Pty Limited ("the respondent") is seeking an order that the applicant pay its costs of the proceedings. The hearing was in two parts. The first related to the effect of the Clyde Waste Terminal (Special Provisions) Act 2003 ("the Clyde Act") and the ambit of its authorisation for the respondent to carry out the activities of a waste transfer terminal. The second hearing dealt with the respondent's alternative defence that it could rely upon existing use rights to continue the activity in respect of which the applicant was seeking a declaration that the respondent has or is likely to carry out development without development consent.
2 I found that the benefit of s 4 of the Clyde Act did not extend to wagon loading, container storage area and railway tracks No. 20 and 22 that the respondent intended to use in conjunction with the waste transfer terminal authorised by the Act. Initially the respondent relied upon s 109 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") for the protection of its use of the loading and storage area and the railways but ultimately succeeded on the basis of an existing use. I did not characterise the use of the site as a freight transport terminal but rather as a railway undertaking in connection with the movement of traffic by rail. In the result it was not a use permissible with consent (s 109) but a use for a lawful purpose immediately before the coming into force of Auburn Local Environmental Plan 2000 ("LEP 2000") which had the effect of prohibiting the use. Subsequently, amendments to the EPA Act arguably made the use permissible with consent but I held that had no impact upon the continuation of the existing use.
3 The applicant contends that because it succeeded entirely in relation to the issue determined at the first hearing and that the respondent was only successful at the second hearing, after changing its reliance upon the provisions of s 109 to an argument that s 107 of the EPA Act protected its right to continue to carry on the activity, it should not bear the burden of the respondent's costs. Moreover it was a community organisation that was pursuing public interest litigation and therefore the Court should exercise its discretion not to award costs against it.
4 In Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 Stein J characterised the litigation as involving public rather than private rights but held that fact alone was not sufficient to justify displacing the usual order as to costs, namely that the successful party should have the benefit of a costs order. It was his opinion that "something more" was required before the successful party should be denied a costs order in its favour. Based on the facts of that case, Stein J determined that the following matters (as conveniently summarised on appeal to the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 in the joint judgment of Gaudron and Gummow JJ at [20]) were relevant:-
(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna"
(iv) In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation.
(v) The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public.
5 I have not been satisfied that the subject litigation covered, at least to the same extent, the wider purpose and benefit identified by Stein J. The applicant was unsuccessful in relation to an argument regarding existing use rights in respect of which no wider significant issues arose. Although the applicant represents a significant group of individuals and the immediate community it goes no further than that. The interests, as best I can determine them are predominantly local interests who disagree with the activity at that location. There were no significant issues regarding environmental law generally that had implications for the public at large. The equivalent of "something more" identified by Stein J has not arisen in the present case. I am not prepared to exercise the discretion in respect of costs on the basis that the litigation can be categorised relevantly as in the public interest.
6 Essentially the respondent has succeeded by defending the applicant's claim. The hearing was split as a consequence of the consensual view that adjudication of the issues of statutory construction had the potential to finally determine the whole matter if the respondent's construction was accepted. The defences were in the alternative. They are clearly defined and capable of separate assessment.
7 The principles for exercise of the Court's discretion in relation to costs has been conveniently summarised by the then Chief Justice in Latoudis v Casey (1990) 170 CLR 534 at 542-3 as follows:-
It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott [(1981) 53 FLR, at p 111] . Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.