Sales-Cini v Wyong City Council

Sales-Cini v Wyong City Council - [2009] NSWLEC 201 - NSWLEC 2009 case summary — Zoe

[18]

16 Finally, the council, in assessing the subdivision, also considered letters of objection which raised matters of Aboriginal heritage and the archaeological reports referred to above. Procedural History 17 It is useful to set out some of the procedural history of this matter. The plaintiff commenced the proceedings on 10 July 2009. On 7 August 2009, the Court directed the plaintiff to file all evidence upon which he relied, except for an archaeologist's report, by 3 September 2009. No evidence was filed by the plaintiff in compliance with this order. 18 Then by consent on 11 September 2009, the plaintiff and his archaeologist were granted access to the site for an inspection to take place on 14 October 2009. The plaintiff was also directed to file an affidavit showing the alleged location of significant sites by 9 October 2009, and to file any other evidence, apart from expert evidence, upon which the plaintiff relied by 2 October 2009. Further, the parties were directed to file a joint expert report by 23 October 2009. 19 On 6 October 2009, Mr Wayne Sales-Cini filed an affidavit showing the location of the claimed significant sites. No other evidence has been filed by the plaintiff and this affidavit represents the totality of his evidence. 20 Neither the plaintiff, nor any expert or any other representative on behalf of the plaintiff, attended the inspection on 14 October 2009. While the plaintiff states that this was because of, first, a dispute between his archaeologist, Mr David Johnson, and that of the second and third defendant, Mr Oliver Brown, over the perceived objectivity of Mr Brown, and second, the plaintiff's desire to have additional persons in attendance contrary to the Court orders, no attempt was made by the plaintiff to relist the matter before the Court to raise these matters or to set an alternate date for the inspection. 21 An inspection of the sites identified by the applicant as having cultural significance therefore took place by specialists engaged by the second and third defendants only on 14 October 2009. The specialists were: (a) Mr Oliver Brown, an archaeologist from Oliver Brown Consulting Archaeology;

[55]

13 The factors described by Beazley J have been consistently taken into consideration and applied in this Court: see, for example, Belmore Residents Action Group Incorporated v Canterbury City Council [2005] NSWLEC 258, Diamond v Birdon Contracting Pty Ltd [2007] NSWLEC 92; Sharples v Minister for Local Government [2008] NSWLEC 67; (2008) 159 LGERA 391. 44 However, in Sales-Cini v Wyong City Council [2009] NSWLEC 1388 Acting Registrar Gray stated the following (at [25]): 25 In order to determine whether I ought to grant an order for the provision of security for costs, I must achieve a balance between the protection of the second respondent from the costs of successfully defending the proceedings, and the injustice that may be caused by unfairly precluding an impecunious applicant from litigating bona fide proceedings. In doing so, I must consider the factors outlined by Beazley JA in KP Cable Investments Pty Limited v Meltglow Pty Ltd . However, the interest of an impecunious plaintiff in access to justice generally outweighs the interest of a defendant in recovering their costs. In Sharples v Minister for Local Government & Ors [2008] NSWLEC 67; (2008) 159 LGERA 391, Biscoe J held that: The principle of access to justice means that an applicant should not have to provide security for costs as a condition of pursuing the claim unless to allow the claim to proceed without security would be an abuse of process. It is not considered to be an abuse of process for an applicant who is a natural person to pursue a genuine claim without providing security merely because the applicant is poor and could not satisfy an adverse costs order, even though it is unjust to a successful respondent left with unrecovered costs. The principle of access to justice trumps mere poverty. 45 With respect to the open standing provisions under s 123 of the Environmental Planning and Assessment Act 1979 ("the EPAA"), the views expressed are, first (see Burrell Place at [14] per Lloyd J), that:

[57]

46 And (see Sales-Cini at [26] per Acting Registrar Gray citing Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214): 26 Secondly, where proceedings are brought pursuant to open standing provisions there are not necessarily other parties who are in a position to bring proceedings seeking the same relief. In Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214; [2002] NSWLEC 217, Pain J considered whether an order for security for costs should be made against an Aboriginal elder who had brought proceedings pursuant to the same open standing provisions upon which these proceedings are brought. At [13] she considered that: Other judgements to which I have been referred have made the comment that given the broad standing provided in the statutory provisions before me, anyone can bring such proceedings and therefore suggest that an order for security will not necessarily prevent the merits of the controversy from being determined because another person is able to come forward and pursue the case. Such statements seem to me to fail to take into account the substantial practical difficulties of proceeding with litigation before this Court where public law matters are in issue rather than private interests. I do not consider that there is such a pool of potential litigants in the community willing to come before the courts to remedy breaches of public law that a Court can be certain in matters of this kind that another litigant will be in a position to come forward, even if the matter is serious. 47 A further consideration is whether, as the plaintiff claims, the proceedings have been brought "in the public interest". As was noted by Acting Registrar Gray in Sales-Cini (at [27]-[28]): 27 … Rule 4.2 of the Land and Environment Court Rules 2007 expressly provides that an order for security for costs may not be made where the Court is satisfied that the proceedings have been brought in the public interest. This reflects a long standing principle that the Court may consider whether the proceedings have been brought in the public interest in order to determine whether it is appropriate to make an order to security for costs. Specifically, in Carriage v Stockland (Constructors) Pty Ltd (No 2) Pain J ruled at [15] that: Where, as in this case, the broad interest asserted as the motivation for taking the proceedings is the protection of community property and cultural heritage, in this case, Aboriginal relics, I do not think the Court should lightly make an order for security for costs which, if made, is likely to bar these proceedings. 28 Similarly, in Williams v Pardoe (2003) 123 LGERA 214; [2003] NSWLEC 363, Bignold J found that there was a strong public interest element where proceedings were brought by an Aboriginal custodian to protect Aboriginal objects from being damaged, in breach of the National Parks and Wildlife Act 1974.

[77]

58 That plaintiff relied on the decision of Donnelly & Mundine v Ross Mining N1 [1999] NSWLEC 76 in support of his submission that an order for security for costs ought not be made where it would inevitably restrain a litigant from taking any further part in the proceedings by reason of his or her limited financial means. 59 That decision may, in my opinion, be distinguished from the facts of the present case. In that case, Talbot J held that the application for security was oppressive following cross examination which revealed that the primary purpose of seeking the order was to attempt to bring the litigation to a premature conclusion before the real issues could be litigated, rather than any genuine desire to seek protection with respect to costs if the applicants were unsuccessful. Thus the evidence disclosed an intention on the part of the respondents to take whatever action was necessary to bring the proceedings to an end before a hearing on the merits. His Honour therefore held that the application for security was "no more than a forensic device for the furtherance of that purpose" (at [87] and see also [82]-[88]). I do not find any such intention present on the application before me. 60 Fourth, I do not accept, as currently framed, that this litigation may properly be characterised as public interest litigation sufficient to displace a security for costs order. While I accept that the plaintiff is raising matters that involve public interest, of itself this is not enough (see Kennedy v Director-General of the Department of Environment and Conservation [No. 2] [2007] NSWLEC 271 at [22]-[24]). As Lloyd J stated in Burrell Place (at [20]-[21]): 20 Ms Pearman submits that the Action Group is raising matters of public interest in respect of the Council's statutory duty as a consent authority to determine development applications under s 79C and s 80 of the Environmental Planning and Assessment Act , referring to Belmore Resident Action Group Incorporated v Canterbury City Council , inter alia.

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