Sharples v Minister for Local Government

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.