Olofsson v Minister for Primary Industries

Judgment 1This judgment concerns a Notice of Motion filed on 18 July 2011 by the Applicant seeking a maximum (protective) costs order limiting any award of costs against the Applicant to $10,000. This was amended in Court to provide for a multi-directional order capping liability for all parties' costs to $10,000 except for the Applicant's liability for costs in relation to all Respondents to total no more than $10,000. These Class 4 and 8 proceedings, which have identical pleadings and travel together, seek declarations that the revocation of the setting aside of the Camberwell Common (the Common) in April 2010 and the reservation of that and Lot 1 in DP 1114623 (the Alternative Common) as Crown land is void and of no effect. Another declaration sought relates to Licence 465379 over the Common to the effect that this is void and of no effect. In relation to Mining Lease Application 351 (MLA 351) over part of the Common an order for service of notice on the Camberwell Common Trust (the Trust) and a declaration that the Trust is a "landholder" are sought. 2The proceedings were commenced by summons filed 1 April 2011 in the name of Camberwell Common Inc (CCI) on behalf of the Trust. CCI was incorporated under the Associations Incorporation Act 2009 in September 2010, after the setting aside of the Common was revoked in April 2010 as a consequence of which the Trust was automatically dissolved and ceased to have an estate in fee simple in the Common. I was informed that the standing of the incorporated association was challenged in a Notice of Motion filed 12 May 2011 by the Second and Third Respondents that did not ultimately proceed to hearing. Instead, after discussion amongst the parties, an order providing for the substitution of a new party, ultimately the Applicant, was made by the Court with the consent of all parties on 28 June 2011. By Amended Summons filed 20 July 2011 the Applicant was substituted as the applicant because she was an office bearer of the Trust with a special interest which satisfied common law standing principles in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 , a matter accepted by the Respondents. 3The Points of Claim (POC) filed 2 August 2011 identify that the Applicant is a resident of Camberwell village and was secretary of the Trust in 1998 until the purported revocation of the setting aside of the Common in April 2010. She has been on the commoners' roll since 1998, corrected in her oral evidence as being from 1990. The First Respondent is the Minister administering the Crown Lands Act 1989 (the CL Act) and the Commons Management Act 1989 (the CM Act). The Second Respondent is one of the applicants under MLA 351. The Third Respondent is proponent of Project No 08 0182 which covers Lot 7004 in DP 93630 (part of the Common). The Fourth Respondent is the Minister administering the Mining Act 1992. 4The history of the Common is identified in the POC at par 8 - 11. Briefly, an area of 200 acres was established as a temporary common in 1876 by notice in the New South Wales (NSW) Government Gazette (reserve 170176). By gazette notice published in June 1993 the corporate name of Camberwell Common Trust was assigned in respect of the Trust for the temporary common for the purposes of s 4 of the CM Act. On 26 February 2003 the Fourth Respondent granted a mining lease to the Second Respondent over land that included part of the then Common in relation to the Ashton Coal Project which is an open cut coal mine directly to the north of Camberwell village. On 4 August 2003 the Second Respondent, the Trust, Hunter Rural Lands Protection Board and the First Respondent entered into a compensation agreement in respect of the Ashton Coal Project in which the parties agreed inter alia to consent to mining on part of the then Common as well as on two parcels of Crown land in exchange for the Alternative Common and another parcel of land being gifted to the Crown. On 11 March 2009 project application 08 0182 was lodged with the Department of Planning for assessment in respect of a proposed construction of a further open cut coal mine directly south of Camberwell village known as South East Open Cut Project. On 17 December 2009, the Exploration Licence 5860 (EL 5860) issued by the Fourth Respondent to the Second Respondent on 22 May 2001 covering part of the Common (Lot 7004 in DP 93630) was renewed for another term. 5As at April 2010 the Common consisted of Lot 7004 in DP 93630 and Lot 7300 in DP 1121685. On 16 April 2010 the First Respondent published a notice in the gazette purportedly reserving both the Common and Alternative Common for the purpose of rural services under s 87 of the CL Act and revoking the setting aside of the Common. On 16 April 2010, the First Respondent issued Licence 465379 to the Third Respondent under s 34 of the CL Act in relation to the Common for access, grazing and site inspection. On 30 April 2010 an erratum notice regarding the revocation of the setting aside of the Common on 16 April 2010 was issued. On 28 May 2010 MLA 351 was lodged for the South East Open Cut Project over Lot 7004 in DP 93630.

Applicant's submissions 24Section 98 of the Civil Procedure Act 2005 (the CP Act) gives the Court broad discretion to award costs with more detailed provisions under Pt 42 of the UCPR. The power to order maximum costs is provided under r 42.4. Such an order was made in Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; (2009) 170 LGERA 1 ( BMCS ) , upheld by the Court of Appeal in Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 ( BMCS (CA)) . See also Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; (2009) 170 LGERA 22 . Similar orders have been made in the Supreme Court and the Federal Court. Factors considered by Bennett J in Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 were applied in BMCS and Caroona and the Court of Appeal in BMCS (CA). 25That there can be large costs in public interest matters which can be inhibit such proceedings being commenced was recognised in Caroona . 26In relation to whether a matter is brought in the public interest, factors were identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 ( Caroona No 3 ) , referred to in BMCS (CA) by Basten JA (Macfarlan JA agreeing) and at [20] and in McGinn v Ashfield Council [2011] NSWLEC 105 per Biscoe J at [18] - [19]. This is a public interest case. Whether litigation is public interest has been considered in a number of cases concerning the application of Pt 4 r 4.2(1) of the Land and Environment Court Rules 2007 (the Court Rules) and these cases should be considered as well as those where a maximum costs order has been made. The five factors referred to by Basten JA in BMCS and in Caroona No 3 as relevant to the characterisation of litigation as public interest are as follows: firstly, the public interest served by the litigation; secondly, whether that interest is confined to a relatively small number of members from the group or association or concern with their own private amenity or whether the interest is wider; thirdly, whether the applicant sought to enforce public law obligations; fourthly whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and finally, whether the applicant has no pecuniary interest in the outcome of the proceedings. 27These were referred to in McGinn . Matters that include "something more" include that the litigation raises one or more novel issues of general importance, has contributed to the proper understanding and development of the law (this case will so contribute), the significance of the environment sought to be protected by the proceedings, whether a significant section of the public will be affected and that there is no financial gain in bringing the proceedings. This case raises issues of law that have importance beyond the subject matter of these proceedings. 28The proceedings are being brought to protect the Common, to protect the rights and interests of present and future generations of Camberwell commoners, and more broadly to protect and define the rights and interests of present and future generations of commoners and the public in respect of the administration of the CM Act, the CL Act and the Mining Act; affidavit of Mrs Olofsson of 18 July 2011 at par 6. 29The proceedings challenge the validity of the purported revocation of the setting aside of a Common (Lot 7004 in DP 93630 and Lot 7300 in DP 1121685) and the validity of the purported reservation of those lots and the Alternative Common (Lot 1 in DP 1114623) (par 5 and par 4 respectively of the Amended Summons). Determining these issues will require interpretation of provisions which permit something to be done "by notice published in the Gazette" (s 61A of the CM Act) or "by notification in the Gazette" (s 87 of the CL Act). Determining what constitutes notice or notification in the Gazette, and when such notice or notification is taken to be given, is of importance beyond these two provisions. 30For example, under the CL Act, a number of powers are exercised by notification in the Gazette, including the powers to dedicate Crown land for a public purpose (s 80 and s 81), revoke such dedications (s 84), add to or revoke reserves (s 88) and declare certain land to be Crown land (s 138). This issue of statutory interpretation affects how Crown land generally may be dealt with and is of importance to the public at large. The protection of the Common is of considerable public importance and the action by the Applicant has the support of the wider community. In particular, the common has existed for over 130 years at Camberwell and has been a valuable community asset; affidavit of Mrs Olofsson filed 18 July 2011 at par 9. Conflict between the Common and mining is of general community concern; affidavit of Mrs Olofsson at par 11. The Applicant has no pecuniary interest in the outcome of the proceedings, affidavit of Mrs Olofsson at par 6. 31The purported revocation of the Common was considered sufficiently significant to be the subject of questions in the NSW Parliament. See Hansard, NSW Legislative Council, 11 April 2010 at p 22288. 32Further regional Crown reserves are a valuable part of NSW heritage and are a finite resource to be managed responsibly for the environmental, social and economic needs of the community. There are about 200 commons throughout NSW and have considerable importance for the communities involved. 33The proceedings are the first of their kind: there has never previously been litigation arising from the CM Act and in particular the circumstances in which the setting aside of land as a common may be revoked remains untested. Accordingly, these proceedings will clarify a previously untested power. 34In addition, if the Applicant is successful in having the purported revocation declared void and of no effect, the Court will also be required to consider the proper administration of the notice provision under cl 21, Div 4, Pt 2 of Sch 1 to the Mining Act. This is also a novel issue of law, which has not been dealt with by the Court. 35There are no countervailing circumstances which exist to suggest a departure from the usual order that costs follow the event. The Applicant acts only for the Commons, is seeking to clarify the circumstances in which the powers of the Minister under the CM Act may be exercised, and more broadly, to clarify the circumstances in which a power is exercised by notice in the government gazette. The Applicant is not financially supported by persons or bodies who would benefit financially from, or who would have their legal or financial interests affected by, the outcome of the litigation. 36The order is sought at a very early stage of the proceedings, enabling the other parties to take into account any limitation on the costs payable to the other parties in the event an order is made. 37The claim is manifestly arguable and similarly, manifestly not frivolous or vexatious. The proceedings are not factually complex. They seek declaratory orders concerning the Minister's purported revocation of the Common, and the grant of Licence 465379 to the Third Respondent under s 34 of the CL Act. There are unlikely to be any disputes as to the facts in the proceedings and evidence is likely to be confined to the papers, which will most likely be able to be provided by way of joint tender bundle. 38The Applicant does not stand to gain financially from these proceedings. The Applicant has limited financial resources, as detailed at par 16 - 21 of the Applicant's affidavit filed 18 July 2011, such that the Applicant would face considerable difficulty in meeting an adverse costs order in the event that she is unsuccessful in the proceedings. Fear of an adverse costs order should not deter the Applicant from properly putting forward her claims, particularly in proceedings that are brought in the public interest. 39The Applicant has set out her financial means at par 19 of her affidavit filed 18 July 2011. She holds a number of bank accounts with small amounts of money in them. While she has a regular income, she has a large mortgage and supports her husband and one of her children. An order for costs will cause significant financial hardship to the Applicant, and is likely to mean the loss of her only assets. 40By contrast, the First and Fourth Respondents are Ministers of the Crown and the Second and Third Respondents are mining companies. While they will not be able to recover their full costs if the order is made and the Applicant is unsuccessful, they will not suffer undue financial hardship.

Consideration 54The wide costs powers of a court are identified in s 98 of the CP Act. Section 60 of the CP Act identifies that matters should be managed so that costs are proportionate to the nature of a case. Part 42 r 42.4 of the UCPR rules provides for the making of a maximum costs order by a court of its own motion or by the application of a party. The decision to make a maximum costs order is discretionary. 55As referred to in the First and Fourth Respondent's submissions, Basten JA in BMCS (CA) (Macfarlan JA concurring) in the Court of Appeal noted at [186] that where "a broad discretionary power is conferred on a court, it is important that the full range of permissible considerations is identified and that limitations" not reflecting the language of the rule not be imposed. In Caroona at [31] Preston J stated that the factors relevant to the exercise of the discretion to make a maximum costs order will vary depending on the circumstances of the case. There has been one maximum costs order made in this Court in BMCS , upheld on appeal. Whether to make such an order was considered in Caroona . The considerations which can apply in matters before this Court were agreed by the parties to be those identified in BMCS, BMCS (CA) and Caroona . 56The broad discretionary power in UCPR r 42.4 is undefined and can be made in any case where a judge considers that it is appropriate in the particular circumstances. For example, in Re Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 Palmer J considered such an order should be made to ensure the parties did not run up excessive legal costs, referred to in Caroona at [21] and by Basten JA in BMCS (CA) at [185]. In BMCS at [46] - [55] I considered a number of matters in deciding whether to make a maximum costs order, referring to matters considered in R (Corner House Research) v Sec. of State for Trade and Industry [2005] 4 All ER 1 (UK Court of Appeal) at [74] and Corcoran at [6] as a useful guide. That approach was accepted by the majority of the Court of Appeal with Beazley JA dissenting on one matter being the issue of proportionality of costs. A number of those matters are also relevant to this case.

Is this a public interest case? 57One of the key matters in dispute is the extent to which these are public interest proceedings. As I noted in BMCS, in maximum cost order applications the evaluation of public interest is usually made at an early stage, in this case before the filing of a defence and evidence so that all the features of the case cannot be known. That does not prevent an early assessment of whether the matter is brought in the public interest, a view confirmed (and strengthened) on appeal in BMCS (CA). In BMCS I referred to the factors relevant to whether proceedings were public interest considered by Stein J in Oshlack v Richmond River Shire Council (1994) 82 LGERA 236, which reasoning was upheld by the High Court; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 80 - 81. That decision concerned whether costs ought follow the event. Five matters recognised as relevant to whether proceedings have been brought in the public interest and the nature of that interest were identified in Oshlack (at first instance and in the High Court) and in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 (Lloyd J at [15]) and have been referred to in several cases including by Basten JA in BMCS (CA) (summarised in the Applicant's submissions in par 26 above). Firstly, t he public interest served by the litigation; secondly w hether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area; thirdly whether the applicant sought to enforce public law obligations ; fourthly whether the prime motivation of the litigation is to uphold the public interest and the rule of law ; and fifthly w hether the applicant has no pecuniary interest in the outcome of the proceedings. 58The parties also agreed that authorities which have considered r 4.2 of the Court Rules concerning variation of the usual costs order in public interest proceedings once proceedings are completed can be considered in this context. As identified in the Applicant's submissions (above at par 26) Caroona No 3 in considering the application of the Court Rules r 4.2, identified three steps. Firstly, whether the matter has been brought in the public interest. Secondly, is there more than the mere characterisation of the litigation as having been brought in the public interest. Thirdly are there any countervailing circumstances suggesting that departure from the usual costs rule is not justified. Given that Court Rules r 4.2 considers the question of public interest at the final stage of proceedings, the precise application of these principles may require some modification given that the exercise of discretion whether to make a maximum costs order is not the same, a matter noted by Beazley JA in BMCS (CA) at [122]. 59This case concerns the revocation of the setting of the Common and reservation of that land and the Alternative Common as Crown land by the First Respondent as the Minister responsible for the administration of the CM Act and the CL Act. There are possible legal consequences for the grant of a mining lease under the Mining Act by the Fourth Respondent if the Applicant is able to pursue this matter and is successful as the Trust would then be a landholder with certain rights under the Mining Act. The focus of my consideration are the grounds in the POC challenging the administration of the CM Act and the CL Act (grounds 1 - 7). 60There is no disagreement that the issues raised in this case in relation to those statutes have not been judicially considered in NSW before. The Applicant's counsel emphasises that this case raises important issues for the administration of CM Act and the CL Act for the first time as identified in her submissions at par 28 above. The Respondents submit that just because the issues have not arisen previously before a court in NSW does not mean that the proceedings are novel or significant or in the nature of a test case. No party was able to advise the Court whether the revocation of the setting aside of a common has ever occurred or was a rare or common event. Its consideration by a court is a rare event if this is the first such case. 61The Common was declared a temporary common in 1876. The First and Fourth Respondent's counsel stated during the hearing that the description of temporary appears to no longer have any relevance under the CM Act. The Common continued in existence until its revocation of its setting aside by the First Respondent in April 2010. The management of areas designated as commons is provided for under the CM Act, which replaced the former Act. The existence of commons within the land management regime in NSW is long standing. That history is referred to in the Second Reading Speech, Commons Management Bill, Local Government (Commons Management) Amendment Bill, 22 February 1989. 62The relevant gazette notice of 16 April 2010 reserving the land under s 87 of the CL Act for specified purposes and the erratum dated 30 April 2010 were exhibited to the affidavit of Ms Illiadis of the Crown Solicitor's Office. There is at the least an irregularity arising from the decisions of the First Respondent under the CM Act and the CL Act. The gazette notice of 16 April 2010 is the notice of the decision to reserve the land in the Common as Crown land to be used for rural services inter alia. In a note Reserve 170176 (the Common) is described as auto revoked. The erratum in the gazette notice dated 30 April 2010 corrects the earlier reservation of Crown land heading and states that Common 170176 is revoked pursuant to s 61A of the CM Act. These issues are raised in grounds 1 and 4 of the POC. Further, ground 5 argues there was non-compliance with s 91 of the CL Act when the Common (and Alternative Common) was reserved as Crown land. Grounds 2, 3, 6 and 7 raise further legal grounds said to give rise to invalidity of the First Respondent's decision to reserve the land under the CL Act. 63I accept the Applicant's counsel's submission that this case raises an important public interest issue of the proper administration of the CM Act and the CL Act by the Crown represented by the First Respondent. The case is concerned at a broad level with the proper administration of land by the Crown and the Applicant is seeking to enforce public law obligations. Several of the issues raised, particularly the question of "by notice published in the gazette", have wider implications beyond these proceedings (Applicant's submissions at par 29 above). 64The motivation of the Applicant in bringing these proceedings attested to in her affidavit of 18 July 2011 (summarised in par 14 above) is to achieve the protection of commons and the rights of commoners more generally in NSW both now and into the future. She maintained this view under cross-examination by the Second and Third Respondents' counsel. Her affidavit attaches newspaper articles about the revocation of the setting aside of the Commons and identifies that a question was asked in NSW Parliament on the topic. Such material suggests there is community concern about the revocation of the setting aside of the Common. I accept her evidence of her motivation in bringing these proceedings. 65The Applicant also stated in her affidavit filed 18 July 2011 (summarised in par 15 above) that she has gone through the records of the Trust from 1934 and in her opinion the commoners have worked to maintain the Common for over 130 years as an important asset of the Camberwell community used for grazing and recreation purposes. I allowed this material to be read over the objection of the Second and Third Respondents' counsel who submitted that it was not a matter which the Applicant could properly give an opinion about. The Applicant's experience as a long term resident and commoner in the village and her knowledge acquired as secretary of the Trust does enable me to give weight to her opinion, and I do. 66The Second and Third Respondents appeared to accept that there was a bare public interest but argued that because of other factors, principally that the Applicant comes to court to protect her private interest as a commoner to use the common if reinstated, the Court should not exercise its discretion to make the order sought. The reason why the Applicant is in the proceedings is identified in par 2 above. A person with sufficient standing has to stand in the shoes of the Trust because the CM Act and the CL Act do not have broad standing provisions and the Trust was dissolved in April 2010 and ceased to have an estate in fee simple in the Common. Such an interest is identified in Onus v Alcoa as an interest in the subject matter of the proceedings above and beyond the general public. Such an interest is necessary in order for an individual to pursue this action given that the Trust no longer exists as a legal entity. The Applicant's standing is based on her previous role as secretary of the Trust, a position she could hold because she was on the commoners' roll. It has been accepted by the Respondents that she has a special interest meaning an interest greater than a member of the public, to establish her common law standing in this matter. That special interest does not necessarily correspond with a personal or private interest. I do not agree with the Respondents' counsels' description of these proceedings as essentially private in nature because the current commoners concerned are small in number and consist largely of family members of the Applicant. I accept that is the position based on the records of who paid Common fees in 2008/2009 and 2009/2010. 67Precisely how the Applicant's interest as a commoner in the Common if reinstated should be characterised is not clear. The Second and Third Respondents' counsel submitted that it was a kind of proprietary interest, the First and Fourth Respondents' counsel described the interest as one which afforded the Applicant a private amenity. Those descriptions may be partially accurate but the interest of a commoner in a common appears to be unique, reflecting the nature of commons historically. A common operates as an area of land that is a community resource for those within the land district where the common is located and who satisfy the criteria of commoner under the relevant Regulation. The use of a common can be for grazing of stock and recreation and that use is enjoyed by individual commoners on a collective basis. It is not accurate to characterise that interest simply as a narrow personal or private interest. Further, the Applicant will not gain financially from the proceedings if she succeeds. 68As held in Caroona at [27] (citing Nettheim v Minister for Planning and Local Government (No 2) (unreported, NSWLEC, Cripps J, 28 September 1998) at 3 - 5 and Alliance to Save Hinchinbrook Inc v Cook [2005] QSC 355 (Jones J) at [11]) that proceedings also involve personal or private interests does not necessarily alter their public interest nature. The loss of an interest as a commoner under the CM Act does not change the fundamental nature of the proceedings as being public interest in nature. I consider the interest raised is significant and that the five matters identified in par 57 relevant to determining whether the proceedings are public interest and are significant are satisfied. Further, to the extent they can be applied, the three steps in Caroona No 3 (identified in par 58 above) suggest that firstly, the proceedings are public interest, and secondly, public law issues will be addressed which have relevance beyond these proceedings. I will consider countervailing circumstances (if any) in the context of the balancing exercise I must undertake in determining if a maximum costs order ought be made in light of all the relevant circumstances.

[2005] QSC 355

(2009) 170 LGERA 1

(2009) 170 LGERA 22

(2010) 173 LGERA 280

(2010) 176 LGERA 424

(2004) 136 LGERA 365

(1981) 149 CLR 27

(1994) 82 LGERA 236

(1998) 193 CLR 72

(2005) 65 NSWLR 268

[2009] NSWLEC 165

[2010] NSWLEC 59

[2010] NSWCA 263

[2011] NSWLEC 105

[2008] FCA 864

[2004] NSWLEC 434