Turnbull v Director-General of the Department of Premier and Cabinet

Judgment 1Mr Turnbull, the Applicant, filed an appeal against a stop work order (SWO) issued under the Native Vegetation Act 2003 (the NV Act) on 30 March 2012. In Turnbull v Director-General of the Department of Premier and Cabinet [2012] NSWLEC 121 (Turnbull (No 1)) handed down on 28 March 2012 I dismissed the Director-General of the Department of Premier and Cabinet's, the Respondent's, Notice of Motion filed on 27 April 2012 and held that the appeal had been filed in time in accordance with s 39(1) of the NV Act. On 29 March 2012 the Applicant's Notice of Motion filed on 22 May 2012 seeking to set aside the SWO because of alleged invalidity was to be heard. At the outset of the hearing the Respondent advised that the SWO the subject of this Class 1 appeal was to be revoked that day. The Applicant now seeks his costs of the proceedings not already awarded in Turnbull (No 1). The Respondent opposes such an order and submits each party should pay its own costs. Rule 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) applies to costs in Class 1 proceedings. 2The SWO now revoked prevented clearing of native vegetation on substantial areas of two properties owned by the Applicant. An affidavit of Mr Turnbull sworn on 29 March 2012 filed in support of the Class 1 application refers at par 3 to a letter he sent to the Department dated 7 March 2012 suggesting that there be discussion about whether illegal clearing has occurred, and in par 4 states that the large areas covered by the SWO affected the preparation of crops for sowing, prevention of weed growth and the maintenance of the property in good order and condition. Another affidavit of Mr Turnbull sworn on 10 May 2012 attaches further correspondence between his solicitors and the Department. The history of the proceedings which is relied on by the Applicant as giving rise to unreasonable behaviour by the Respondent is the issue of a SWO on 21 February 2012 with hand delivery on 22 February 2012 and postal service of an identical SWO on 2 March 2012, the letter from Mr Turnbull dated 7 March 2012 suggesting why the SWO should not apply to which no response was received, the commencement of this Class 1 appeal, a letter from his solicitors dated 4 May 2012 setting out why the SWO was invalid with response on 7 May 2012 from the Department that whether the SWO was invalid should await the outcome of the Department's Notice of Motion to strike out the appeal as being time barred (considered in Turnbull (No 1)), the listing of the Applicant's Notice of Motion filed 22 May 2012 following Turnbull (No 1) for hearing on 29 May 2012 and the revocation of the SWO on 29 May 2012 rendering the proceedings otiose when the SWO had about a month to run, expiring on 1 July 2012. 3The Applicant submits that costs should follow the event, being the filing of the Applicant's Notice of Motion challenging the validity of the SWO. Alternatively, applying r 3.7(3) of the Court Rules the history of the proceedings including the late withdrawal of the SWO is unreasonable behaviour as referred to in r 3.7(3). Alternatively, as the Court no longer has jurisdiction with the revocation of the SWO, by analogy the reasoning in Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292 could apply so that r 3.7 does not apply and costs follow the event. In order for the principle in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 to apply there must be evidence from the Respondent establishing why such a late revocation of the SWO occurred. 4The Respondent submitted that there was no relevant event as the merits of the Applicant's Notice of Motion challenging the validity of the SWO was not heard. There is no concession by the Respondent that the notice was invalid and there has been no determination of the merits of the terms of the notice. The revocation of the SWO is a supervening event which alone does not give rise to a costs order as identified in Lai Qin referred to in Kiama v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [46]. There are several examples of supervening events in the cases referred to in Kiama v Grant where the event results from the actions of one of the parties rather than another person over whom the parties have no control, including Lai Qin and Murray v Valaire (No 2) [2001] NSWLEC 241. The revocation of the SWO is not unreasonable but a reasonable response to the litigation. The Respondent's legal representative submitted from the bar table the revocation was to avoid further costs particularly given that the order expires on 1 July 2012.