The exercise of the costs discretion against a non-party 16

The "Man of Straw" test - Tinda's situation, and its relationship with Diamond 18

(a) The relationship as described in my Judgement of

(b) The relationship as amplified on re-examination of all the evidence 23

(c) Conclusions regarding the relationship and the "Man of Straw" test 25

The "Interests of Justice" in the circumstances of this case 27

ETRA PTY LIMITED ACN 002 662 277 T/as P F FORMATION

NORAH BERNADETTE HURNEY, CALCIDON CAMILLERI, CARMEN ANNE CAMILLERI, TONY DOMINELLI and LETIZIA DOMINELLI

1. In these Class 4 proceedings the "active" respondents (namely the Council, Etra Pty Limited, and the respondent Hurney) now seek an order for costs personally against Mr Neville Francis Diamond, previously recognised by the Court throughout these proceedings as a spokesman, advocate, and witness for the applicant.

2. The respondents Camilleris and Dominellis have taken no part in the proceedings, and Hurney has been represented by the same solicitors and Counsel as Etra.

3. On 12 May 1998 Mr Diamond appeared on behalf of the applicant, and the Court was asked to make costs orders against both the applicant and Mr Diamond personally. I ordered that the applicant should pay the costs incurred by the active respondents in respect of the security for costs application (see unreported judgment handed down 27 November 1997), and in the Class 4 proceedings themselves, including the hearing on the question of costs on that date.

4. In the same judgment I made a preliminary finding that the correct interpretation of the relevant authorities indicated that this Court does have jurisdiction, in certain limited circumstances, to make a costs order, in its discretion, against persons who are not specifically parties to proceedings, but I adjourned the question of whether such an order should be made against Mr Diamond in this case. When the hearing resumed on 9 September 1998, Mr Diamond was represented by Counsel (Mr T Robertson) and while there was no real contest that this Court could make such an order, strong submissions were made on whether it should do so.

5. On earlier occasions this Court has made costs orders in favour of non-parties, usually objectors who appeared at hearings. See, e.g. Golden v Coffs Harbour City Council [No.2] (1991) 72 LGRA 406 and Geoform Design Pty Ltd v Randwick City Council [1995] NSWLEC 80; (1995) 87 LGERA 140. However, I can find no case in this Court where costs have been ordered against non-parties.

6. The making of an order against Mr Diamond personally would be a quite extraordinary event. If my preliminary view on the question of power is correct, such a harsh weapon should not be lightly called upon. The history of the disputes and proceedings among the parties in these proceedings will, therefore, be set out in considerable detail before I address the substantive questions involved in the making of such an order.

Tinda's proceedings in opposition to sandmining

7. In the various proceedings involving these parties, Tinda has articulated its opposition to Etra's current sandmining operations, as approved by Council, on land owned by the Third Respondents.

8. Etra is a substantial participant in the sandmining and sand processing operations within the "Maroota designated area", which covers areas of both the Council involved in these proceedings, and Hornsby Shire Council.

9. The evidence before me in October 1997 indicated that Etra was the largest sandminer in the Baulkham Hills Council area, and that it had to that time been granted six development consents which related to, or were associated with, four separate extractive industry operations.

10. Tinda's activities and objections regarding the then current Etra operations appeared to begin with its response to Council's public notification of a further development application (No.96/007), which would arguably become the largest single sandmining proposal in the Sydney metropolitan area.

11. Tinda originally commenced proceedings in Class 1 of the Court's jurisdiction on 10 March 1997 (Matter No.00007 of 1997), contesting a variation, under s 102 of the Environmental Planning & Assessment Act 1979 ("EPAA"), of the relevant development consent 90/3. Those proceedings were struck out by consent, and costs were subsequently ordered against Tinda, for the reasons and in the circumstances which are outlined in my judgment of 6 May 1997.

12. Tinda commenced these Class 4 proceedings on 1 April 1997.

13. Mr Robertson noted in argument on 9 September 1998, that Tinda's Class 4 application had 3 "legs":

1. The Council could not modify Etra's consent after it had expired 5 years from its original grant.

2. If that be wrong, Council's decision to modify it was manifestly unreasonable, or did not deal with substantively the same development.

3. The development consent had not been complied with in any event. (The breaches alleged largely concerned dams, their safety, and the environmental impacts of a potential dam failure).

14. Tinda filed an amended Class 4 application on 13 May 1997. On 29 May 1997, Lloyd J dealt with a motion to strike out that amended application, and granted leave to Tinda to file a further amended application and points of claim. Lloyd J ordered Tinda to pay the Council's costs of the motion.

15. The further amended Class 4 application, and amended points of claim, were filed on 6 June 1997, but before Tinda had put on its evidence in support of the application, notices of motion for security for costs were filed on behalf of the respondent Council, Etra, and Hurney.

16. The three notices of motion for security of costs were heard by me in October 1997, and were the subject of my judgment dated 27 November 1997.

17. It is relevant to observe for present purposes that the estimated amounts of likely costs, underpinning those applications for security, were based on an estimated hearing time in the substantive proceedings of two days. On the hearing of the notices of motion for security, Tinda did not contest those estimated costs, totalling $100,500, and I observed that "these [were] substantial and complex proceedings in which one would expect the legal costs and expenses to be high".

18. During the hearing of the notices of motion for security there was before the Court, also, evidence as to the amounts of costs claimed against Tinda in respect of both the struck-out Class 1 proceedings, and the notice of motion dealt with by Lloyd J. The evidence before me on that occasion further made clear that Tinda, as at the date of the further hearing in October 1997, had neither assets, nor funds on hand, sufficient to meet those two costs orders, nor its own costs and expenses in regard to those proceedings.

19. Indeed, Tinda led evidence that it could not afford to continue the Class 4 litigation if security were ordered in the unchallenged amounts sought.

20. A security for costs application involves considerations different from those involved in determining whether or not to make an order for costs. It is not necessary for the Court to deal conclusively with the subject proceedings, but the authorities require the Court to form some "impression" as to the likelihood of their success, in order to predict the likelihood of an order for costs being made against the party bringing the proceedings.

21. The general rule in Class 4 of this Court's jurisdiction is that costs follow the event. Costs orders are of course compensatory in nature, and are not awarded to penalise an unsuccessful party. Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. However, I concluded, in the security for costs proceedings in this matter, that an order for costs may well have been made against Tinda if it failed in the substantive Class 4 proceedings, even if it were found that Tinda had acted in good faith and in the public interest.

22. In security for costs proceedings, the impecuniosity of the relevant party is "patently a substantive factor", but it does not give rise to a predisposition on the part of the Court towards an order for security. Caldera Environment Centre Inc v Tweed Shire Council & Anor, Stein J, 25 September 1992, 40091 of 1992; Byron Shire Businesses for the Future Inc v Byron Shire Council & Anor (1994) 83 LGERA 59.

23. However, as my judgment of 27 November 1997 indicates, I concluded that the applications for security for costs should be granted, and I made orders which (i) allowed a reasonable time (90 days) for Tinda to endeavour to raise the necessary funds, and (ii) provided for dismissal of the Class 4 application, if Tinda did not satisfy the Registrar, within that time, of the relevant security.

Relevant findings made in the Security for Costs decision

24. In determining that the orders for security should be made, I came to the following conclusions:

* that Tinda would have great difficulty succeeding in its Class 4 proceedings.

* that both the company and its principal activists were impecunious.

* that Tinda was highly unlikely to be able to pay any costs ordered against it if it failed in the proceedings.

* that I was not satisfied on the evidence that the successful pursuit of the Class 4 proceedings would be of direct benefit to Tinda.

* that I had "genuine doubts as to whether or not any alleged directors of Tinda had even been validly appointed, and as to whether the litigation was properly authorised, even if it can be shown to be consistent with its objects", but that these factors were not directly relevant to the key decision I had to make, namely as to whether or not security should be granted or refused.

* that I was not satisfied that the proceedings had been brought "in the public interest".

* that the founders of Tinda, other than Mr Diamond, had been shown to have no real interest in the proceedings.

* that if the proceedings failed, or were struck out in the event of security not being forthcoming, similar proceedings with similar objectives could be brought by other community groups.

The applicant's challenge to some of those findings

25. In the two days of hearings on the current questions of costs, which were reserved in my judgment of 29 November 1997, some challenge was mounted against my finding, in that judgment, that Tinda would have great difficulty succeeding in these Class 4 proceedings.

26. In that judgment I said (at p29): "It is not a strong case and the respondents have quite cogent evidence in reply, ...". During the hearing on 9 September 1998, Mr Robertson tendered correspondence between Douglas Partners Pty Ltd and one of Etra's companies, dated 13 August 1997, and from Etra's consultants, Collin C Donges & Associates Pty Ltd to Baulkham Hills Shire Council, dated 29 August 1997. (Exhibit 1). He submitted on Mr Diamond's behalf that there was some obligation on the part of the Council to have presented those documents in evidence during the security for costs proceedings, and that, had they been available to the Court in those proceedings, the Court would probably have concluded that Tinda's case was stronger than I, on the available evidence, found it to be.

27. With great respect to Counsel, I accept the submission made on behalf of the Council on this question, namely that there was no obligation on Council to present those letters in proceedings seeking security for costs (cf any application for an interlocutory injunction), and I am of the view that, even if they had been presented in evidence, they would not (and in fact do not) materially affect the "impression" I formed regarding the prospects of Tinda's success. The correspondence deals with a relatively recent problem, apparently able to be easily solved, involving a dam no longer to be relied upon by the operator. If anything, this material could be viewed as weakening part of Tinda's case.

The dismissal of the Class 4 proceedings, and the applications for costs

28. Tinda failed to satisfy the Registrar, within the stipulated 90 days, that adequate security had been provided, and the Class 4 proceedings were automatically dismissed. The substantive issues in those proceedings have not been conclusively determined by the Court.

29. There has been no evidence adduced to indicate whether Tinda failed to satisfy the Registrar on the security issue either deliberately, or simply as a result of the unavailability of funds. The automatic dismissal order was not an unusual order to make in the circumstances, and my judgment of 27 November 1997 makes clear that I was at all times cognisant, during the hearing and during my consideration of the security issue, that the making of an order for security may effectively stifle Tinda's litigation, and effectively bring it to an end when the time expired.

30. Applications for costs were then made by the active respondents, against both Tinda and Mr Diamond.

31. When these applications for costs came on for hearing on 12 May 1998, Mr Diamond appeared for Tinda.

32. Council's solicitor had sent a letter to Mr Diamond (with identical letters having been sent to the other then recorded directors of Tinda) on 15 May 1997, relevantly prior to the security for costs applications coming before the Court. That letter said, in part, as follows:

"I intend to pursue an application to strike out the Amended Application of Tinda Creek and to the extent (if any) that application is not successful to defend the proceedings vigorously. Costs will be sought at each stage. Documents held by the Australian Securities Commission indicate that Tinda Creek is a public company limited by guarantee in the amount of $20.00. If Tinda Creek is ordered to pay costs and is unable to meet that debt, I put you on notice that I would seek to have Tinda Creek wound up and recover costs from you individually. I also note that directors are under a duty to prevent insolvent trading by the company and may be liable to pay compensation if found to be in breach of that duty; see ss. 588G and 588J of the Corporations Law."

33. On 12 May 1998, Mr Diamond indicated that he had come to Court, on that morning, to meet only the claim for costs against Tinda, and was not in a position to defend any claim that might be brought against him personally as well.

34. I was satisfied that he had not anticipated that an order for costs could be, or had been, made personally against him, and that he had not had an adequate opportunity to obtain appropriate advice and representation, and I determined that any argument on whether the Court's costs discretion should be exercised against him personally, as well as against Tinda, should be deferred to another day.

Costs generally, and the "public interest" nature of Tinda's litigation

35. This Court has a general discretion as to costs pursuant to s 69(2) of the Land & Environment Court Act 1979 ("LECA") and in the words of subsection (2)(b) "the Court may determine by whom, and to what extent costs are to be paid".

36. In Class 4 proceedings, the unsuccessful party will usually be ordered to pay the costs of the successful party. However, in certain circumstances, the Court may exercise its discretion not to order costs against an unsuccessful party. All the authorities agree that the judicial discretion should not be "shackled by immutable rules".

37. Costs are "compensatory" in nature. As McHugh J said in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 (at 566-7):

"An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation ... The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory."

38. The High Court has made clear, in Oshlack v Richmond River Council ("Oshlack") [1998] HCA 11; (1997) 96 LGERA 173, that this Court may take into account the public interest nature of the subject proceedings as a relevant factor in exercising its discretion on the question of costs.

39. The Oshlack test has been interpreted in Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors ("Hinchinbrook") (NG164 of 1997, unreported, Federal Court of Australia, 30 April 1998), and it is well established that, to avoid an order on such a basis, more is required than that some members of the public have a substantial degree of interest in the outcome of the litigation. The application of these principles in the work of this Court was dealt with by Pearlman J in her judgment on costs in North Cronulla Precinct Committee Incorporated v Sutherland Shire Council ("North Cronulla") (40098 of 1997, 29 July 1998), and I respectfully adopt Her Honour's reasoning.

40. In North Cronulla the learned Chief Judge adopted an earlier comment made by Stein J, at first instance in Oshlack (82 LGERA 236 at 244), that "the categorisation of proceedings as public interest litigation of itself is not enough to constitute special circumstances, rather something more is required" to deprive a successful party of its costs.

41. Her Honour acknowledged that relevant factors might include that the proceedings contributed to the proper understanding of the relevant law, that they involved no private gain, that the basis of the challenge was arguable, that the proceedings concerned a notorious site amidst continuing controversy, or that the purpose of the proceedings was to protect the environment.

42. Kirby J in Southwest Forest Defence Foundation Inc v WA Department of Conservation and Land Management No.2 ("Southwest") [1998] HCA 35; (1998) 72 ALJR 1008 said:

"Nothing in ... Oshlack ... requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule. To suggest that would be to misread what the Court decided in Oshlack. It would require legislation to afford litigants such a special and privileged position so far as costs are concerned. No such general legislation has been enacted".

43. His Honour went on to observe that a particular consideration in Oshlack when the matter was before Stein J, was the existence of special legislation in NSW, namely s 123 of the EPAA, providing for an "increased opportunity for public involvement and participation in environmental planning and assessment" matters and enlarging the standing rules to permit that to be achieved. Oshlack makes clear that s 69 of the LECA is not to be narrowly construed when it operates on litigation under s 123.

44. Section 123 of the EPAA permits any person to bring proceedings in the Court to remedy or restrain a breach of that Act. Section 123(3) relevantly provides that "any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings". I have already determined in this case that an order for costs against the applicant is appropriate, against the background of these principles and the authorities relevant to them.

45. However, there has been some discussion as to the relevance of s123(3) to the application for an order for costs personally against Mr Diamond. I am of the view that any costs ordered against the applicant in these proceedings form part of "the legal costs and expenses incurred by the person bringing the proceedings", and I find nothing at all in s 123 to preclude the making of an order against Mr Diamond personally.

46. The community must not be discouraged from bringing proceedings, as the right of individual citizens or groups so to do is expressly provided for in the legislation. In this case, Mr Diamond contended that the majority of directors and supporters of Tinda had, and retained, serious and sincere concerns regarding the sandmining industry, both as it affects the Maroota or Baulkham Hills Shire area, and as it is represented by Etra.

47. However, I found on 12 May 1998 that "the Court must be cognisant of the fact that one needs more than an occasional newspaper article and/or a well intentioned submission by a group of citizens" (p10), and/or, indeed, a well thought out Court challenge, to satisfy the Oshlack test. As these proceedings were in Class 4 of the Court's jurisdiction, I determined that it was improper to exercise the Court's costs discretion against the respondents, simply on the basis that Tinda "continues to assemble evidence calling into question the activities of the sandmining industry, and those authorities of government and local government that supervise it or have some dealings with it".

* "Nor should the Court lightly interfere with what would be the normal order for costs in proceedings, framed as these were, simply because there is continued concern with that industry, with that Council, or with the question of any particular element of Etra's operations". (p10)

* "While the Court shares the acknowledgment by the respondents of the Tinda Creek Group's genuine concern with the matters at hand, I have come to the conclusion that these proceedings, framed as they were, were not of such compass as to satisfy the Oshlack test". (p11)

49. Accordingly, I ordered the company to pay the costs of the relevant respondents, in respect of not only the security for costs application, but also those of both the (dismissed) Class 4 proceedings themselves, and the costs hearing of 12 May 1998.

50. What the respondents now seek is that the orders for costs already made against Tinda should be varied so that they become jointly and severally the responsibility of not only Tinda, but of Neville Francis Diamond personally as well.

51. I conclude that nothing in Oshlack, nor in Southwest, insulates Mr Diamond from a personal order for costs on the basis of the public interest nature, such as it may be, of Tinda's Class 4 proceedings.

The jurisdiction to award costs against a non-party

52. In my judgment of 12 May 1998 I indicated that I had come to the preliminary view that the Court has jurisdiction to exercise its discretion to order costs against a "third party". That preliminary view was not challenged when Counsel appeared for Mr Diamond on 9 September 1998.

53. The leading Australian case on this question is Knight & Anor v F P Special Assets Ltd & Ors ("Knight") [1992] HCA 28; (1992) 174 CLR 178, in which the High Court (on 25 June 1992) followed the decision of the House of Lords in Aiden Shipping Co Ltd v Interbock Limited [1986] AC 965 ("Aiden Shipping"). See also In re Land and Property Trust Company PLC [1991] 1 WLR 601 at 603 and Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 72 ALJR 1141.

54. To the best of my knowledge the issue has been considered only once in this Court - not long after Aiden Shipping, but almost three years before Knight.

55. In Scott & Ors v Wollongong City Council & Anor ("Scott") (40090 of 1989, unreported), Cripps J gave his judgment on the substantive issues on 21 September 1989, and a judgment on the question of costs on 25 October 1989.

56. The respondents in Scott sought orders for costs against not only the three named applicants but also against all the citizens who comprised an unincorporated association known as the "Residents of Belmore Basin". Apparently those citizens had undertaken to indemnify the named applicants, of whom His Honour said:

"It was pursuant to s 123(2) that the three named applicants brought the subject proceedings on behalf of the `Residents of Belmore Basin'. In these circumstances it would seem to me, as presently advised, that the members of the Residents of Belmore Basin are not relevantly strangers to the proceedings."

57. Counsel on neither side in Scott made any submissions to Cripps J on "the power of jurisdiction of the Court to make an order for costs against persons other than the named applicants", but Cripps J noted some relevant authorities, including the then recently decided Aiden Shipping. His Honour noted also that the Court's costs power under s69 of LECA "is couched in wide terms", but concluded that the relevant question of power "must remain an open question". In view of the indemnity, Counsel for the parties in Scott agreed that the application for costs against the non-parties should be adjourned, and there the matter rests.

58. While Knight concerned orders made under the Supreme Court Act of Queensland, it is clear from the judgments that the power is not limited to that Court or its rules.

59. The principal judgment in the High Court was a joint effort of Mason CJ and Deane J, and their Honours identify a wide variety of circumstances where an exercise of such a jurisdiction against a non-party would be "extravagant and unjust".

60. They held, however, that such a possibility provides no justification for arbitrarily limiting the general jurisdiction available to Courts "to order costs against a non-party in cases in which, in the interests of justice, such order should be made" (at 185).

61. In their survey of historical authorities their Honours observe instances of such a jurisdiction being exercised in ejectment actions in the 19th Century, where the making of an order was put on the basis that it was against "the real party to the suit" (at 187).

62. Subsequently, the principle was extended beyond ejectment action to questions of master and servant, relator actions, a solicitor suing without authority, a person interested in an estate who occasioned additional costs, a next friend, an unsuccessful claimant on an estate, and the directors of a company which unsuccessfully petitioned for the appointment of an administrator. (It might now be noted as well that the English Court of Appeal has upheld recently the order of a Queens Bench Judge who required an unsuccessful non-party insurer to pay a plaintiff's costs because of the way in which the insurer had exercised its right to conduct the litigation. See 72 ALJ 357).

"It is plain enough that the Courts from time to time awarded costs against a person who, not being a party on the record, was considered to be the `real party'. It may be that these cases are capable of being explained on various grounds, including the ground that the non-party ordered to pay costs was guilty of abuse of process, taking a very broad view of what constitutes an abuse of process, but to say that does not deny that there was jurisdiction to make an order for costs against a non-party even if the jurisdiction was exercised in limited circumstances only".

64. Their Honours went on to construe the relevant rule of Court and said:

"It is preferable to interpret the words of the rule according to their natural and ordinary meaning as conferring a grant of jurisdiction to order costs not limited to parties on the record and ensure that the jurisdiction is exercised responsibly".

65. Their Honours considered also the availability of security for costs, and the staying of proceedings until it is given, and they said (at 191):

"... the availability of the remedy is scarcely a reason for denying the existence of jurisdiction to make an order for costs against the `real party' at the end of the trial of an action. The availability of an order for security for costs at an earlier stage of the litigation would, in many situations, be a strong argument for refusing to exercise a discretion to order costs against a non-party, but discretion must be distinguished from jurisdiction".

"For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made".

67. Gaudron J agreed with the judgment of Mason CJ and Deane J, but added the following single paragraph (at 205), which I quoted in my earlier judgment:

"It is contrary to long-established principle and wholly inappropriate that the grant of power to a Court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a Court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse."

68. I affirm the view I expressed on 12 May 1998 that this Court does indeed have, under the principles in Knight, jurisdiction to make costs orders against non-parties.

69. However, I am of the view that, particularly in cases where some degree of public interest can be seen to play a major role in the proceedings, such a step should not be undertaken without anxious consideration on the part of the Court.

The exercise of the costs discretion against a non-party

70. As submitted by Mr Kunc on behalf of the Council, one can deduce from the judgments in Knight that the tests to apply to Tinda and Mr Diamond, in deciding whether to make a personal costs order against Mr Diamond are as follows:

(1) Is the party an insolvent person or man of straw?

(2) Has the non-party played an active role in the conduct of the litigation?

(3) Has the non-party, or some person on whose behalf he or she is acting, or by whom he or she has been appointed, an interest in the subject of the litigation?

(4) If the above three tests are satisfied, do the interests of justice support or require that an order for costs be made against a non-party, on the basis he or she is the "real party".

71. There is certainly some evidence from which the Court could infer that Tinda is insolvent. However, there is no conclusive evidence to that effect. On an earlier occasion I found myself satisfied that Tinda was impecunious, but I found also that Mr Diamond, and his supporters, have a demonstrated capacity to raise funds effectively. In satisfying the first leg of Mr Kunc's test, therefore, the Court must consider whether in all the circumstances of the case, Tinda is a "man of straw".

72. There is no question that the non-party Diamond played an extremely active part in the conduct of the litigation. That much is clear, and it is admitted.

73. What is not so clear is what interests Diamond had in the litigation. The evidence in this case certainly does not disclose a financial interest, but financial interests cannot possibly be the sole test. It would seem that he is virtually a full-time environmental activist.

74. Section 123 of the EPAA envisages public concern or sensitivity as a criterion for taking advantage of the open standing provisions. The mere fact of taking advantage of s 123 may not be thought to establish a relevant personal "interest". As Judge Naughton says in his LECA Service, at p.2-754:

"Statutory locus standi under s 123 does not require the applicant to have any particular right. Because s 123(1) specifically abrogates the need to show any `right', but not the need to show any `interest', although s 123(2) refers to persons having like or common `interests", in the proceedings it might be thought that an applicant relying on s 123 for locus standi must at least be able to show that the applicant has an `interest' in the subject matter of the proceedings. However, that is not how the provision has been interpreted. It has been interpreted as providing `open' locus standi to `any person' without qualification".

75. However, on the basis of Diamond's proven and admitted activism in opposing the sandmining interests (see pars 7ff above), including the commencement and pursuit of the Class 1 and Class 4 proceedings, I think it fair to conclude that Diamond did have a substantial and relevant interest in the subject matter.

76. The question for the Court now is whether he can be fairly regarded as the "real party". The Court must, therefore, turn its attention to the "man of straw" test, and to a consideration of test (4), the "interests of justice".

The "Man of Straw" test - Tinda's situation, and its relationship with Diamond

77. Counsel on both sides of the costs argument drew attention, in respect of these questions, not only to the contents of my judgment of 27 November 1997 (on the question of security for costs), but also to all the evidence (affidavit and oral) that was adduced in the security for costs hearing.

78. I will, therefore, set out in this part of the judgment:

* in section (a), relevant findings made in my judgment of 27 November 1997 regarding Tinda, Diamond, and their relationship one to the other;

* in section (b), some key elements of the evidence presented to the Court, during the security for costs hearings (not included in that earlier judgment), regarding that relationship; and

* in section (c), my conclusions regarding that relationship, and the "Man of Straw" test.

(a) The relationship as described in my Judgment of 27 November 1997

79. The following are extracts from that judgment regarding the Tinda/Diamond relationship.

"... Tinda currently has neither assets nor funds on hand to meet the two costs orders already made against it in these or related proceedings, or the other expenses it has incurred in regard to them.

Therefore I cannot be confident at this time that it could meet any further costs orders that may be made".

80. At pages 11-15 under the heading "Tinda" I said:

Tinda is a public company limited by guarantee and in its Memorandum of Association the guarantee is capped at $20.

It was incorporated in about September 1995, and registered on 2 November 1995 to operate as a "church", by a group of citizens who had apparently met at a church/centre at Bligh Park, Windsor, or in Tinda Creek Progress Association, and expressed a shared interest in establishing and maintaining an "environmental centre for spiritualism".

That centre was to be established on part of a 200 acre property then owned by one of Tinda's directors, and its secretary, Neville Francis Diamond, at Tinda Creek on Singleton Road in the Colo Heights area, a substantial distance (approximately 50-60 km) from Etra's operations at Maroota.

That property apparently reverted in late 1996 to a bank which may have onsold it already as mortgagee in possession, but it is asserted in evidence that Mr Diamond, if not the group, holds out some hopes of being able to buy it back and establish the Centre. In his evidence, Mr Diamond valued the site at $280,000.

In his affidavit of 22 July 1997 Mr Diamond deposed:

"4. A principal objective of the Applicant is to establish and maintain an Environmental Centre for spiritualism and to do such things to attain that objective. Spiritualism is the act of taking full responsibility for the environment. The applicant was formed to concern itself with all aspects of humanity and the environment."

The Board-type responsibilities are entrusted by the Articles of Tinda to a "Council of Management" or "the Church Council".

The company is not presently trading or carrying on any business and its former account at the ANZ Bank in Richmond was closed earlier this year.

Its record keeping and attention to necessary corporate governance formalities is admitted in Mr Diamond's affidavit of 2 October 1997, and in other evidence, to be poor, even if it is true, as claimed in evidence, that many of its records for 1995-96 were lost in a burglary in January or February 1997.

The Council contends that Tinda is not a regularly conducted, recognised environmental organisation enjoying an acknowledged track record, and broad support; but that it is no more than "a corporate shell with no assets, and some current liabilities, which is being used for the ad hoc activities of " Neville Diamond and a changing group of his friends and associates.

Nonetheless Tinda purported to hold a meeting on 7 October 1997, a Minute of which (included in Exhibit 7) shows that Luciana Bowen, Neville Diamond and Graham Hillman were in attendance, that they resolved that Woolf Associates be instructed to act on Tinda's behalf in these proceedings, and that they resolved further that Neville Diamond be authorised to instruct that firm on Tinda's behalf.

The resolution goes on to say "the Council hereby ratifies Mr Diamond's actions to date on behalf of the Centre in the conduct of those proceedings".

Ms Bowen was elected as "Chair and Company President temporarily" at that meeting and signed that minute as "Chairperson".

There is some doubt as to what those who voted at earlier (1996) meetings, or were consulted about Diamond's activities, understood they were authorising or supporting, so there must be some doubt as to its "ratification". (See for example the evidence of Ms Hollebond).

Mr Diamond and Ms Bowen gave evidence in the hearing of these applications for security for costs.

Mr Diamond has apparently worked in the past in the waste disposal industry, gaining relevant experience in storage dams, containment ponds, septic tanks, drains, etc.

In more recent times he has been employed in some capacity by or at Woolworths, but he has also marketed himself as an "environmental consultant", with a business card printed in 1996 particularising "E.I.S., Planning, Liason (sic), Litigation".

In his evidence Mr Diamond rejected the suggestion that he "carried on business" as such a consultant, saying that he "gave a lot of people some advice for nothing".

He has been, since at least February 1997, and apparently is now, a Social Security beneficiary, and his affidavit of 27 May 1997 says he is "engaged full-time on environmental activities, much of which activity is performed on a voluntary community-oriented basis."

He testified that in July 1997 he borrowed $2,500 from his family and lent it to Tinda for the company's environmental purposes.

He certainly has a "track record" of environmental activism, as evidenced by his admissions of involvement in relevant organisations and activities, and by the newspaper article in Exhibit 11 and the letter in Exhibit 12, identifying him with organisations such as "Hawkesbury Healthy Environment Land and People Encourages Sustainability" ("HELPES") and Tinda Creek Progress Association.

While the current financial position of Tinda can, on the evidence, be described as "parlous", and its current exposure to known liabilities is substantial, Mr Diamond and Ms Bowen are confident that Tinda can and will meet its commitments by "taking the hat around" the local community and environmental groups, seeking donations for its "fighting fund" from those who support its environmental endeavours, including this litigation.

Mr Diamond said in evidence that the expenditure from the fighting fund was for him to determine, and he did not disclose the identity of any of the donors who have as yet made, or are likely to make, donations in respect of these proceedings.

He specifically denied that the donors included representatives of Etra's rival sandmining interests, such as Kenneth Dixon, the Managing Director of its nearest neighbouring competitor.

Diamond and Bowen have some relationship with Dixon and/or with the Gouskos family on whose land Dixon's operations are centred.

The evidence establishes Mr Diamond's credentials as a successful fundraiser. The receipt book in evidence shows he raised more than $10,000 between 1 February and 13 July 1997, $5,000 of it between 27 May and 7 June.

Mr Dixon also gave evidence before me, and denied funding these proceedings, but he admits having donated $500 towards another Tinda initiative, namely its resistance of the so-called Maroota Trig site proposal, and having assisted Tinda in other practical ways.

Diamond denied working for Dixon or giving him any advice.

81. At pages 15-16, under the heading "Tinda's Objects", I said:

The Council challenges these proceedings as being inconsistent with Tinda's "legitimate objects" as disclosed in its Memorandum and Articles of Association, and urges the Court to accept that the making of an order for security would be "a proper exercise of discretion".

Indeed Council submits that environmental activism is, in fact, contrary to the company's objects and a breach of its licence from the Australian Securities Commission.

The Memorandum of Association forms part of Exhibit 6 and the objects appear in paragraph 2.

"(a) To establish and maintain an environmental centre for spiritualism.

(f) To take such steps by personal or written appeals, public meetings or otherwise as may from time to time be deemed expedient for the purpose of procuring contributions to the funds of the company in the shape of donations annual subscriptions or otherwise.

(g) In furtherance of the objects of the company to print and publish any periodicals books or leaflets that the company may think desirable and to likewise use the media.

(h) To borrow or raise money or secure the payment of money required for any of the objects of the company or for the satisfaction or performance of any of the obligations or liabilities incurred or undertaken by the company in such manner as a company may from time to time think fit.

(i) To invest and deal with any money of the company not immediately required for any of its objects upon such securities and in such manner as the company may think fit.

(i) In the interpretation of the objects, the meaning of any of the company's objects shall not be restricted by reference to any other object or by juxtaposition of two or more objects and that in the event of any ambiguity this clause shall be construed in such a way as to widen and not restrict the powers of the company which are hereby vested in and exercisable by the Directors for the time being of the company except such as by statute or by the articles of association for the time being of the company required to be exercised by the company in general meeting."

Mr Newport suggests that Tinda is not limited to its Centre as a mere physical building (based on Town Watch Incorporated v Grafton City Council (1997) 93 LGERA 401 ("Town Watch")) and Mr Diamond contended that this litigation came squarely within the company's objects on the basis that, if the environment benefits, the company does too.

I accept the submissions that the evidence indicates that Tinda's only current public activity is prosecution of this litigation, and that such activities are probably beyond its objects.

"There are certainly some substantial questions raised about the "legality" of Tinda's corporate governance and, for example, the signatures on some of the company documents.

Indeed I have genuine doubts as to whether or not any alleged directors of Tinda have even been validly appointed, and as to whether the litigation was properly authorised, even if it can be shown to be consistent with its objects."

"There is no evidence that Tinda is a recognised peak environmental organisation, enjoying broad community support, and even its founders, other than Mr Diamond, have shown no interest in being involved in proceedings such as these."

(b) The relationship as amplified on re-examination of all the evidence

84. In his affidavit of 27 May 1997, Mr Diamond identified himself as a director and secretary of the applicant and as a full-time activist; he deposed that the members of the applicant had authorised him to act as their spokesperson and investigation officer in respect of environmental matters in the Hawkesbury region; he deposed that those members and the supporters of the applicant and other environmentally minded people contribute funds as and when needed to support "my activities in this regard"; and he went on to say that the activities of Etra "cause myself and supporters of my environmental activities" great concern.

85. The rest of the affidavit was all about his personal observations and views and the impact of various events on himself. He deposed to personally briefing an expert geotechnical consultant, to engaging "my solicitor" and making "many representations" to Council officers and members, to authorising the briefing of Counsel, and to receiving personally various items of relevant correspondence.

86. The affidavit did not talk about any meetings or consultations with other persons, other than in general terms as to the fact that they authorised him to do the job and would contribute funds.

87. That affidavit clearly establishes Mr Diamond's role in the case on a higher plane than simply as a witness on questions of fact.

88. Mr Kunc also relies on some annexures to an affidavit by solicitor P E Rae dated 8 July 1997. One is a company search of 15 May 1997 identifying the incorporation of Tinda as having occurred on 2 November 1995, with Laurie Johnston, Andrew Adams, John Duley, Craig Langley and Neville Francis Diamond all appointed as directors, and Diamond as secretary, all appointments having taken effect on 2 November 1995 and no changes having been lodged up until 15 May 1997.

89. Also annexed to Rae's affidavit was a copy of Tinda's application for a licence to omit the word "limited" from its official name and title. That document purported to carry the signatures as Johnston (as company president), Diamond (as company secretary and vice president), Adams (as company treasurer) and Duley, Langley and Erika Schiller (as company directors). The declaration gives the appearance of being jointly completed by those six persons and bears the date 12 October 1995.

90. However, the evidence before the Court from, and/or regarding, Chris Edwards, Langley, R W Quilty, Duley, Adams, Schiller, Brian Staples, Johnston, William Morris, John Morris, Barbara Hollebon, Diamond's mother, Duane Norris, and Gregory Hunter confirms that relevant others had almost no knowledge of, nor commitment to, any of Diamond's litigious activities, purportedly on behalf of Tinda, save for the evidence given in her own regard by Bowen. While I was satisfied that Bowen was keen to see the affairs of Tinda better organised, she too relied almost entirely upon Diamond's leadership and direction.

91. Mr Kunc also relies upon annexures "H", "J", "K" and "P" to the affidavit of Peter Zadeian of 17 October 1997.

* Annexure "H" is Diamond's original objection dated 24 June 1996 to DA96/077 and the s 102 amendments.

* Annexure "J" is a detailed submission in opposition to DA96/077, received 28 February 1997, the cover sheet of which says it is submitted by Tinda, of which Diamond is the public officer, and the text is signed by Diamond in that capacity.

* Annexure "K" is a letter signed by Diamond but again stated to be from Tinda dated 12 September 1997.

* Annexure "P" is a further letter dated 17 September 1997 signed by Diamond with the same Pitt Town Post Office address but not stated to be from or on behalf of the Centre.

92. Mr Kunc also relies upon the "personal" appearance of Tinda's bank records, as produced to the List Clerk on 6 August 1997, and the evidence of Mr Collenbrander of Longmac Associates, whom Mr Diamond took to the site to look at the ponds. The Longmac representatives entered a fee arrangement with Diamond, all their dealings were with him, and their account was rendered to him. Collenbrander gave evidence suggestive of the arrangement being with Mr Diamond, and involving no other representative of Tinda.

(c) Conclusions regarding the relationship and the "Man of Straw" test

93. Mr Robertson submits that Mr Diamond was merely playing an active part as a senior officer of an incorporated community organisation, and that being a "driving force" in any litigation does not make him the "real party". However, Diamond's own affidavit indicates that he was playing a leading role beyond simply that which one would expect of a company director or public officer of an organisation involved in litigation. There is no evidence of his reporting back in any comprehensive way to any other members or purported members of the company. While there is no hard evidence of fraud, there is certainly abundant evidence of corporate irregularities.

94. In essence, the evidence reveals that virtually everything about this company revolved around Diamond personally.

* the primary focus of Tinda was the establishment and conduct of a proposed environmental/spiritual centre, not relevantly proximate to the Maroota sandmining area.

* the conduct of litigation such as these Class 4 proceedings may be specifically prohibited by Tinda's objects, but certainly was not consistent with them.

* Tinda has neither traded, nor carried on any business, since early 1997, save for this litigation, which, the evidence indicates, was probably not properly authorised at any stage.

* Tinda has little capital, a small guarantee, informal/personal banking arrangements, and seems always to have been in a "parlous" financial situation, alleviated only by Diamond "taking the hat around", including borrowing from his family.

* Tinda's financial management, and its engagement of professional representatives/consultants, seem to have been in the control of Diamond exclusively, and he exerted total control of both the disclosure of the sources of its finance, and the disbursement of its funds.

* of the activists and supporters identified with Tinda at various times, only Bowen displayed any real interest in the proceedings; but even she played virtually no part in Tinda's conduct of them.

* at all relevant times Diamond was engaged almost full-time on "environmental activities, much of which activity is performed on a voluntary community-oriented basis".

* Diamond's conduct in almost all respects regarding these proceedings lacked any "representative" character; he was in effect the litigant, and he erected Tinda to stand in front of him.

96. Accordingly, I conclude that Tinda was indeed a "man of straw", and that the "real party" bringing these proceedings was Neville Francis Diamond.

The "Interests of Justice" in the circumstances of this case

"The circumstances in which it would be appropriate to award costs to a non-party would necessarily be confined, but that is a question of discretion, not jurisdiction. I should add that the discretion to award costs is to be exercised judicially so that a person against whom costs may be awarded must, if not a party, be brought before the court. In many cases the convenient method of bringing him before the court would be to make him a party whereupon, even upon the appellants' argument, any problem of lack of jurisdiction would disappear."

98. Mr Kunc's basic argument is that, if the Court found Mr Diamond to be the "real party", the costs order should almost automatically be made against him. However, I believe a wider consideration of all the circumstances is required.

99. The Court has already ordered that Tinda pay the respondents' costs, and no new evidence has been adduced as to whether or not Tinda is capable of doing so, or has any intention of trying. I think the Court is entitled to infer from the evidence that none of the outstanding costs already ordered have been paid, and that the company remains impecunious, and perhaps insolvent. Yet, there is no clear evidence that Tinda will not be able to meet the orders so far made, and there is no evidence of any action being taken by the respondents to wind Tinda up, or otherwise deal with its alleged insolvency.

100. Mr Diamond was certainly on notice that he might be, in some way, personally exposed, even if it is fair and true to say that he did not, until lately, understand to what extent.

101. A personal costs order is a risk beyond a director's specific responsibilities under the Corporations Law. Diamond's exposure under the Corporations Law was clearly set out in the letter of 15 May 1997, and the other aspects of his exposure were made absolutely clear to him on 12 May 1998, when he saw, for himself, that the Court had formed the preliminary view that it had jurisdiction to make a personal order against him.

102. I then specifically adjourned the proceedings so that he could obtain advice and arrange representation, and it would have been a simple matter for him to have adduced evidence on 9 September 1998 that Tinda would be able to meet its responsibilities under the various costs orders made. He could then have submitted that the interests of justice militated against the making of a personal order.

103. In the absence of such evidence, I can only conclude that it is at least highly unlikely that the respondents will successfully recover their costs from Tinda.

104. The question before the Court, therefore, is whether I am so convinced that the respondents ought to be compensated for their costs that in the interests of justice, the costs order should be made jointly and severally against Mr Diamond as well.

105. It is true that the operation of the automatic dismissal order means that the issues raised by Tinda in these proceedings were not fully litigated in the Court. However, while I was satisfied as at 27 November 1997 that Tinda had a serious issue to be tried, I formed the view that the respondents had substantial evidence to rebut Tinda's case, and that Tinda had a real prospect of failing, and having costs ordered against it.

106. In any event, the automatic dismissal took effect many months ago, and no other action has apparently been taken by any other responsible citizen or community group to achieve the same ends as Tinda espoused in its Class 4 proceedings.

107. The Courts have long recognised that although an initiating party may "have a point", if it fails to continue with proceedings, or they are determined against it, the party put to expense in resisting them is prima facie entitled to costs on a compensatory basis.

108. In all the circumstances of the way in which this case unfolded, there appears to be no valid reason for the respondents to be denied their costs. Making the order personally against Mr Diamond will not guarantee recovery of those costs, but it may increase the possibility, and that, it would seem to me, on the facts of this case, serves the interests of justice.

109. I reject the submission by Mr Robertson that the interests of justice require Mr Diamond to have been placed specifically on notice of his personal risk of an order for costs before the costs now sought against him were incurred by the respondents. It may not emerge until the end of any proceedings that an individual played such a role as to expose him or her to such risk. There is no traditional requirement that non-parties be advised of such personal risk, but some element of risk was quite clearly identified in the letter of 15 May 1997, and Diamond was legally represented at various relevant stages of the matter thereafter. There is absolutely no authority for the proposition that costs should not be ordered against him in the absence of a clear warning given, in terms, in advance.

110. Nor do I attach any significance to the fact that the costs were effectively incurred by the respondents in an interlocutory proceeding, which eventually took longer than the original estimate for the trial itself. Nor is it significant that the Court does not (yet) know how much money is involved.

111. The Court need only conclude whether or not it is fair in all the circumstances that a person who acted as Mr Diamond did in this case, should be held liable, at least in part, for the costs involved.

112. It is not uncommon for community organisations to incorporate in order to conduct litigation in this Court, but it is equally common for such groupings of citizens, the associations they form, and the bodies they incorporate to set about raising, somehow, the money they need in order to meet their own costs of such litigation, and any they are otherwise ordered to pay.

113. If proceedings are commenced, and lost, by an unincorporated body, individual members of the Committee may be held liable for any costs ordered. By analogy the only identifiable person having the conduct of these proceedings, in the name of Tinda, which happens to be incorporated, is Diamond himself. Having taken advantage of s 123 in some representative capacity, the normal consequences should flow, and I am not satisfied that making an order holding him responsible for costs in these circumstances, in these proceedings, will discourage other litigants from taking advantage of the open standing provisions.

114. I have concluded, therefore, that not only do the interests of justice not dictate that no such personal order should be made, they dictate quite positively that it should.

115. As I am satisfied that Mr Diamond played such a role in these proceedings that he can be regarded as the "real party", I have concluded that it is just in all the circumstances that the respondents be compensated for the expense to which he put them in his failure to prosecute the proceedings to a victory.

116. The Court acknowledges, as it did on an earlier occasion, that Mr Diamond held, expressed, and was always motivated by, genuine concerns and ambitions in respect of the environmental issues surrounding the Etra operations, and that the proceedings were commenced in order to pursue those concerns, ambitions and issues.

117. Nonetheless, he chose to take advantage of the provisions of s 123, and, to minimise his personal risk, he commenced the proceedings in the name of Tinda, which presented really as a "front" for him.

118. An objective observer of the conduct of this litigation would conclude that it was Diamond's litigation, and that Tinda was merely a convenient vehicle for some purposes, including an attempt to insulate him from an order for costs.

119. In the absence of evidence that Tinda can and will meet the costs orders already made in these proceedings, including that made against it on 12 May 1998 in favour of the respondents, the interests of justice in all the circumstances dictate that Mr Diamond should be made jointly and severally liable with that company, in which he has played really the only leading part, to meet the consequences of those orders.

120. Although Diamond may not have clearly apprehended, until he came to Court for the hearing on 12 May 1998, that he was at risk of a personal costs order, I have decided that all parties should pay their own costs of the hearing on 9 September 1998.

121. Matter No.00007 of 1997 is not before the Court. Therefore, the costs order made by me on 6 May 1997 is not involved in this judgment.

122. Accordingly, the orders of the Court are that:

1. The costs orders made against Tinda Creek Spiritual & Environment Centre, in these proceedings, on 29 May 1997, and 12 May 1998, are varied so as to provide that Neville Francis Diamond of Wisemans Ferry Road Maroota is held jointly and severally liable to satisfy the order for costs made against Tinda Creek Spiritual and Environment Centre, namely to pay the costs incurred by the First, Second and First Third Respondents, including the proceedings for the security for costs, and the hearing on the question of costs on 12 May 1998.

2. That all parties and Mr Diamond each pay their own costs of the further hearing on costs on 9 September 1998.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 31 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.