Sharples v Minister for Local Government

Land and Environment Court (NSW)|2008-02-08|Before: Biscoe J

The applicant indicated to me today that the section of the LG Act to which he intended to refer is s 508A(3). 15 On 2 November 2007, the Court directed that the applicant file and serve points of claim by 23 November 2007. That was not done. The respondents submitted, without contest, that the Court directed on 7 December 2007 that the applicant file and serve points of claim by 21 January 2008 (in fact short minutes of order dated 7 December 2007 on the court file stipulate 21 December 2008, which is obviously an error). Points of claim have still not been filed or served.

16 No explanation was provided by the applicant until he filed and read his own affidavit at the hearing this morning. His explanation, which I accept, is to the effect that he has suffered serious mental and physical illnesses, including a stroke in December 2007, which has left him effectively incapacitated to comply with his obligations under the directions. Unfortunately, none of this was communicated to the respondents until the hearing this morning. Having seen that evidence, they do not contest it. 17 The respondents brought and prosecuted their security motions in good faith without any knowledge that there was any explanation for the default. The lack of communication by the applicant to the respondents of the reasons for his defaults is a matter to be taken into consideration. All litigants, whether represented or not, should be mindful that communication is often necessary and effective in resolving issues before they reach the steps of the Court. However, I accept that the state of the applicant's health was such that he was thinking unclearly about all this. 18 The applicant's health now appears to have improved and he has indicated that, if given the opportunity, he should be able to file and serve points of claim within two weeks. I accept that he is genuine. The respondents have expressed concern that as he has failed to comply with directions to file points of claim and still has not done so, if security is not now ordered the present motions will have to be renewed if he again defaults.

19 Notwithstanding that the applicant's affidavit read today testifies to the substance of his case and that his complaints were communicated to the respondents before he commenced proceedings, the respondents are entitled to have his case pleaded so that they might know precisely what it is that they have to meet, particularly given the serious nature of the allegations.

20 As to the substance of his case, in his affidavit the applicant says that the matter commenced in March 2006 when the third respondent council published a document entitled "Tweed Shire Council's 7 Year Plan" in which were listed $133.6 million of shire projects for which it wished to obtain community approval in order to obtain Ministerial approval pursuant to s 508A of the Local Government Act 1993 and relevant guidelines. The compounding effect of the rate increase being sought, the applicant says, was such that rates would approximately double for every ratepayer in the shire by the end of the seven year plan. The applicant says that the community were not told this. He says they were told the effect of the proposed increase on 83% of ratepayers would be around $1 per week for every year of the program. He alleges that a false and misleading representation was made in writing in that regard. The applicant says that a doubling of rates will have a massive financial impact on his family's continued ability to meet future rate demands in the longer term and he believes that he and his family will be forced to sell their property. He recounts expressions of concern by individual members of the community and indicates that he caused to be conducted a survey and provided the results to the third respondent council. He alleges that the council knowingly and/or recklessly provided the first two respondents with false and misleading information twice. 21 In light of this evidence (although it is not all in a form that would make it admissible at trial), the respondents properly concede for the purposes of the present hearing that the applicant's case is not without substance and concerns a matter of public interest. CONCLUSION 22 Factors favouring a security for costs order are that the motions for security were brought promptly; the applicant is impecunious so that if the order is not made the respondents, if successful and if they obtain a costs order, are likely to be out of pocket; the applicant has failed to comply with directions to plead and still has not done so; and there is a risk that he will not comply with a further direction to file and serve points of claim within a limited time. Factors weighing against a security order are that the applicant's case is arguable, regular on its face, genuine, properly instituted, brought by a person within the jurisdiction, brought in the public interest (albeit also in his and his family's interest); a security order would be likely to stultify the proceedings; an acceptable explanation has been provided for failure to comply with the Court's directions to plead; and the applicant has said he would be able to plead within a short time if given the opportunity. The new r 4.2 of the Land and Environment Court Rules 2007 expressly empowers the Court not to order security for costs if satisfied that the proceedings have been brought in the public interest.

23 The factors against an unconditional security order outweigh those favouring an unconditional security order. However, the risk that the applicant will continue to default on any obligation to plead justifies a conditional security for costs order which will give him a further opportunity to plead before he is required to provide security. The appropriate amount of that security, on the uncontested evidence provided by the respondents, is as indicated below.

24 The Court orders that the applicant file and serve points of claim within 21 days. In default the proceedings will be stayed unless the applicant provides security within a further 14 days in the sum of $6,000 on account of the first and second respondents' costs and in the sum of $6,000 on account of the third respondent's costs. The costs of these notices of motion are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Sharples v Minister for Local Government [2008] NSWLEC 67

Abraham v Thompson [1997] 4 All ER 362 CASES CITED: Diamond v Birdon Contracting Pty Limited [2007] NSWLEC 92 Melville v Craig Nowlan and Associates Pty Limited (2002) 54 NSWLR 82

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