Wayne Sales-Cini v Wyong City Council & Anor

KEY ISSUES: COSTS :- Security for Costs - judicial review of approval for residential subdivision - inability of applicant to meet an adverse costs order - whether proceedings are an abuse of process - whether order for security for costs should be made.

Environmental Planning and Assessment Act 1979 s 79C, 123 LEGISLATION CITED: Land and Environment Court Rules 2007 r 4.2. National Parks and Wildlife Act 1974 s 86, 90, 176A Uniform Civil Procedure Rules 2005 Pt 42

Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214; [2002] NSWLEC 217 Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92 KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189 CASES CITED: Rajski v Computer Manufacture and Design Pty Ltd [1983] 2 NSWLR 122 Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82 Sharples v Minister for Local Government & Ors [2008] NSWLEC 67; (2008) 159 LGERA 391 Williams v Pardoe (2003) 123 LGERA 214; [2003] NSWLEC 363

APPLICANT Mr A Oshlack (agent) Indigenous Justice Advocacy Network

LEGAL REPRESENTATIVES: FIRST RESPONDENT HWL Ebsworth Lawyers

SECOND RESPONDENT Mr S Griffiths, Solicitor Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

09/40337 Wayne Sales-Cini v Wyong City Council & Anor

1 ACTING REGISTRAR: An order is sought by the second respondent in these proceedings, by way of notice of motion filed 8 July 2009, for the applicant to give security for the costs of the second respondent in the sum of $50 000. The second respondent also seeks an order that the proceedings be stayed pending the giving of that security.

2 The proceedings were commenced by Summons on 27 May 2009 purportedly filed pursuant to the general standing provision of s 123 of the Environmental Planning and Assessment Act 1979 (NSW). They relate to the approval by the first respondent, Wyong City Council ("the Council"), of a development application made by the second respondent for a residential subdivision of a parcel of land at Louisiana Road, Kanwal in the Wadalba Hill area. A substantial amount of the land in the Wadalba Hill area is not affected by the development and an urban release strategy for the area includes the creation of a large wildlife corridor. Further, some of the land the subject of the development application is to be resumed by the Council for the purpose of the wildlife corridor.

3 Points of claim were filed by the applicant on 13 July 2009. The substance of the proceedings is for a judicial review of the development consent granted and for declaratory and injunctive relief.

4 The points of claim outline four grounds on which the applicant seeks the relief claimed. Firstly, the applicant alleges that the first respondent has failed to consider relevant matters pursuant to s 79C(1)(b) and (d) of the Environmental Planning and Assessment Act 1979 (NSW). Specifically, it is alleged that the Council failed to properly consider "a detailed submission which included a large number of photos of Cultural Heritage", or that the Council failed to properly consider the impact of the development on Aboriginal sites and objects. No particulars are provided in relation to the precise submission that is referred to in relation to this ground. The second ground relied upon by the applicant in the proceedings is that there was a failure on behalf of the Council to treat the determination as an integrated development and a failure to obtain general terms of approval from the Department of Environment and Climate pursuant to s 90 of the National Parks and Wildlife Act 1974 (NSW). Approval from the Director-General of the Department of Environment and Climate is required pursuant to s 90 where the development will destroy, deface or damage an Aboriginal object or place.

5 Thirdly, the applicant alleges that the decision of the Council was biased. This allegation is based on an assertion that because the date of the notice of determination is the same as that of the Council meeting that determined the application, the Council must have pre-judged the application by endorsing its approval prior to the Council meeting.

6 Fourthly, the applicant alleges that the carrying out of the development in accordance with the consent will cause a breach of ss 86 and 90 of the National Parks and Wildlife Act 1974 by causing the destruction of or damage to aboriginal objects or places. In my view this last ground is related to the second ground raised by the applicant, in that if there is evidence that the development will cause the destruction, defacing or damage of an Aboriginal object or place; (a) the development is to be considered an integrated development and therefore the general terms of consent are to be obtained from the Department of Environment and Climate Change; and (b) the Director General's consent is required and if obtained precludes a breach of ss 86 and 90 of the National Parks and Wildlife Act 1974. It may be, in respect of the latter ground, that the applicant seeks to rely on the open standing provisions of s 176A of the National Parks and Wildlife Act 1974 however no reference is made in the summons or the points of claim setting out the same.

7 The proceedings first came before the list judge on 19 June 2009. On that date a timetable was set for the filing of evidence in the proceedings. That timetable provided that the applicant was to file and serve its points of claim and affidavits in chief by 10 July 2009. Therefore at the date of the hearing of the present application, the time for the evidence in chief to be filed by the applicant had passed. The only evidence filed by the applicant in the proceedings thus far is the lay evidence given by an affidavit of the applicant sworn 10 July 2009. That affidavit sets out the special knowledge of the applicant in relation to the land, and the aboriginal sites identified by him in the Wadalba Hill area.

8 The applicant also filed a notice of motion on 10 July 2009 seeking access to the land in order to prepare an archaeological report in relation to the aboriginal sites. The notice of motion also seeks an interim injunction, and leave to issue a subpoena to the Department of Environment and Climate Change. That notice of motion has been stood over for directions pending the outcome of the present application.

9 In support of the present application, the second respondent relies on the affidavits of Mr Simpson sworn 7 July 2009 and Mr Oliver sworn 6 July 2009. Mr Oliver was cross-examined by Mr Oshlack, agent for the applicant, but his evidence remained unchallenged. The affidavit of Mr Simpson outlines a number of issues that the second respondent asserts are the primary issues in the proceedings. Specifically, they are set out at paragraph 7 and are as follows: "a. whether or not the Plaintiff is precluded from challenging the development consent by virtue of section 101 of the Environmental Planning and Assessment Act 1979 ("EPA Act")'

b. whether or not the First Defendant, in granting the development consent under challenge, acted in accordance with the requirements of the EPA Act;

c. if not, whether or not in the exercise of its discretion the Court ought intervene;

d. the adequacy of various archaeological reports and reports from the local Aboriginal Land Council as to the significance of the site in terms of its Aboriginal cultural heritage;

e. the adequacy of the conditions of development consent to protect any Aboriginal item or relic which might be found thereon;

f. whether or not either of the Defendants can be said to be in breach or likely to be in breach of the provisions protecting Aboriginal objects and places in the National Parks and Wildlife Act."

10 On my view, the issue articulated in (a) can be inferred as being a ground to be relied upon in defence and to be contained in the points of defence. The issue raised in (b) relates to grounds 1, 2 and 4 of the applicant's points of claim. The issues articulated in (d)-(f) concern the alleged breaches of ss 86 and 90 of the National Parks and Wildlife Act 1974 and therefore relate to grounds 2 and 4 of the applicant's points of claim.

11 The affidavit of Mr Simpson also sets out the estimate of costs to be incurred by the second respondent in defending the proceedings. The total estimate is for costs in the order of $50,163.00. Those costs include solicitor costs for conducting the proceedings including the taking of instructions, the preparation of documents, preparation for hearing, and attendance at directions hearings, interlocutory applications and the final hearing. The costs also include expert fees for the preparation of expert evidence and attendance at the final hearing.

12 It is accepted by the applicant's agent that the applicant is impecunious and that he will not be able to meet an order for costs or for security for costs.

13 The power to order security for costs arises pursuant to Part 42 Rule 21 of the Uniform Civil Procedure Rules 2005. Relevantly, that rule provides: "(1) If, in any proceedings, it appears to the court on the application of a defendant: … (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given."

14 The court also has inherent power to order security for costs. This power is unfettered and is not restricted by any rules of the court: Rajski v Computer Manufacture and Design Pty Ltd [1983] 2 NSWLR 122.

15 The principles relevant to the exercise of the court's discretion to order security for the payment of costs are set out by Beazley JA in KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 and are summarised by Lloyd J in Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92 at para 4-5 as follows:

"4 The Court has an unfettered discretion to order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party: s 69(3) of the Land & Environment Court Act 1979 . The principles that have been conventionally applied to applications for security are those set out by Beazley J in KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198. The considerations said to be relevant by her Honour in that case may be summarised as:

(1) Whether the application for security has been brought promptly;

(2) The strength and bona fides of the case in which security is sought;

(3) Whether the impecuniosity of the applicant results from the respondent's conduct, the subject of the claim;

(4) Whether the application for security is oppressive in the sense of denying an impecunious citizen or organisation a right to litigate;

(5) Whether there are persons standing behind the plaintiff applicant who are likely to benefit and be willing to provide the security;

(6) Whether persons standing behind the plaintiff applicant have offered any personal undertaking to be liable for the costs, and if so, the form of any such taking;

(7) Whether the applicant for security is in substance the plaintiff or the proceedings are defensive in nature.

5 Care must be taken in adopting this judgment of the Federal Court because in Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82, the New South Wales Court of Appeal held that cases on security for costs under s 56 of the Federal Court of Australia Act 1976 should not be applied to applications under s 69(3) of the Land & Environment Court Act 1979 . Nevertheless the principles described by Beazley J are available as a general guide and I am prepared to apply them, but modified by the qualifications to those principles as explained in Melville ."

16 The second respondent submits that the Court should exercise its discretion to make an order for security for costs on a number of grounds. Whilst in its outline of submissions the second respondent addressed each of the above principles, I repeat here only those grounds on which the second respondent relied in order to obtain the order sought.

17 Firstly, the second respondent submits that the inability of the applicant to meet an adverse costs order ought to weigh heavily in the exercise of the Court's discretion to make an order for security for costs. Secondly, the second respondent refers to the promptness by which the application was brought.

18 Thirdly, the second respondent submits that the applicant's case is weak and unsupported by evidence. Specifically, the second respondent points out that the applicant's case is predicated on the affidavit of the applicant containing assertions that the Wadalba Hill area contains Aboriginal relics and has Aboriginal significance. This evidence is compared with that filed by the second respondent and contained in the affidavit of Mr Oliver. That affidavit includes evidence of the following: - That an assessment of Wadalba Hill area was conducted by Dr Pawel Gorecki and Mary Dallas, Aboriginal archaeologists, in June 2000. That assessment concluded that there were no relics or places of Aboriginal significance located on the site the subject of the development application; - That a report was obtained from the Darkinjung Aboriginal Land Council stating that the development was unlikely to disturb any Aboriginal artefacts; - That a report was sought to be obtained in late 2008 from Total Earth Care to provide an independent review of the Aboriginal heritage in the area. A three page report was initially produced in November 2008 indicating that there were no Aboriginal cultural heritage constraints on the development area. Following the grant of consent in January 2009 a full report was produced confirming that view and setting out the methods of assessment and consultation. - That in the preparation of each of the above reports, the Darkingjung people and the Guringai people were consulted and advice was received from Aboriginal elders; - That the reports prepared in 2000 and 2008 each considered sites identified by Boris Branwhite. Some of those sites were found to be of Aboriginal heritage, but most of the other identified sites were dismissed.

19 The second respondent submits, therefore, that the applicant has no expert or objective evidence demonstrating that Aboriginal relics are contained on the site of the development consent and that they would be destroyed, defaced or damaged as a result of the grant of development consent.

20 The second respondent also points to the applicant's affidavit and suggests an alignment of the interests between the applicant and Mr Branwhite. It is submitted that this demonstrates that the concerns of the applicant have already been considered appropriately by the Council through the independent reports. Further, it is submitted that if an Aboriginal relic was discovered after the grant of the consent, it would not invalidate the consent.

21 Fourthly, the second respondent submits that there is no evidence that the requirement to provide security for costs would be oppressive in that it would deny the applicant the right to litigate legitimate issues. It is submitted that due to the open standing provisions of s 123 of the Environmental Planning and Assessment Act 1979 and s 176A of the National Parks and Wildlife Act 1974, there are representative Aboriginal associations who may be able to litigate these issues in the court. This submission is consistent with the decision of the Court of Appeal in Melville v Craig Nowlan and Associates Pty Ltd (2002) 54 NSWLR 82 at 102.

22 Finally, the second respondent submits that there is no public interest to be served by the litigation that is over and above the public interest already served throughout the Council's consideration of the development application. The second respondent says that the existence of representative aboriginal bodies and their involvement in the assessment process, the carrying out of the assessments by two independent archaeologists and the monitoring of the Aboriginal archaeological issues by Wyong Council and DECC suggest that the public interest has already been adequately served. Further, the second respondent submits that the public interest would be best served by allowing the development to proceed in order to ensure the creation of the wildlife corridor.

23 The applicant submits that it is not appropriate for an order to be made for him to provide security for costs in circumstances where: - The affidavit evidence of the applicant demonstrates that the applicant has a special knowledge of the Wadalba Hill area; - The affidavit sets out a number of archaeological sites, some of which are contained in the area of the development; - The affidavit sets out that the applicant's input was not sought in the consideration of the development application, notwithstanding a letter requesting the same provided by the Environmental Defender's Office to Wyong City Council; - The affidavit evidence is 'unrefuted'; - The applicant has not had the opportunity to access the land for the preparation of an expert report; - The evidence of Mr Oliver demonstrates that the council did not take into account the final report of Total Earth Care in making its determination; - The evidence of Mr Oliver shows that each report considered many of the claims of Mr Branwhite as being reasonable; - The report of Total Earth Care is based on false assumptions in relation to the activities of Aboriginal people; and - The evidence of Mr Oliver demonstrates that DECC did not provide any final position in relation to the development application.

24 The applicant submits firstly that the application for security for costs is premature in the sense that the application was made prior to the applicant's case being made known. Secondly, the applicant submits that the proceedings are brought for a public interest in that the applicant is not deriving any personal benefit from the proceedings. Rather, the applicant is seeking to enforce the interests of the Aboriginal community. Finally, the applicant submits that as a result of the points summarised in para 22 above, his case is "strong" and that an order for security of costs would preclude him from properly litigating those issues.

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."

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 par 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."

27 Thirdly, 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 for security for costs. Specifically, in Carriage v Stockland (Constructors) Pty Ltd (No 2) Pain J ruled at par 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.

29 There is no doubt, in my view, that there is a paucity of evidence in relation to the points of claim made by the applicant. I cannot accept that the applicant's case, in respect to any of the claims made, on the basis of the evidence that is currently before the Court, can properly be described as "strong".

30 I accept also the evidence and the submissions to the effect that the applicant will be unable to pursue to the proceedings if an order is made requiring him to provide security for costs.

31 The main factor in favour of an order for security of costs is therefore that the second respondent ought to be protected from incurring unrecoverable costs in circumstances where the applicant does not have sufficient evidence to support the points of claim made in the proceedings. The second respondent may therefore be forced to defend the proceedings without the prospect of a costs order in their favour being met.

32 The first ground alleged by the applicant in the substantive proceedings is that the Council failed to properly consider a submission in relation to cultural heritage, or that the Council failed to properly consider the impact of the development on Aboriginal sites and relics. There is no evidence to support this ground. The evidence is quite clearly to the contrary. The evidence of Mr Oliver demonstrates that there was strong community consultation throughout the assessment process, and that each submission made in relation to the archaeological sites was properly assessed in the course of the preparation of the independent expert reports and the report by Darkinjung Land Council. I am therefore of the view that there are no reasonable prospects of success in relation to that ground. I am of the same view in relation to the allegation of bias made by the applicant in the points of claim. That allegation is made on the premise that that the notice of determination must have been signed prior to the Council meeting and therefore that the development application had been pre-determined. This premise is mere speculation, and no evidence has been filed in support of the allegation of bias. Accordingly, to allow the applicant to proceed on either of these grounds without an order for security for costs would therefore be an abuse of the court's process.

33 However, I am of the view that there are arguable prospects of success in relation to the issue of whether the consent is invalid by virtue of the alleged failure to comply with ss 87 or 90 of the National Parks and Wildlife Act 1974 and therefore also the failure to obtain general terms of consent from the Department of Environment and Climate Change. In order to be successful on either of these points, the applicant is required to demonstrate that the development will cause the destruction, defacing or damage of an Aboriginal object or place. The applicant's affidavit establishes a prima facie case in that regard, notwithstanding that the overwhelming evidence filed by the second respondent in the present application clearly contradicts the content of that affidavit. At this stage, the applicant's evidence fails to establish that any of the identified aboriginal sites are contained on the site of the development, fails to demonstrate that the identified sites would be removed, defaced or damaged by the development, and fails to provide an independent or expert assessment of the archaeological issues.

34 In circumstances where the applicant is seeking orders to take steps to prepare further evidence (by way of his notice of motion filed 10 July 2009), I am not of the view that the above failures will result in proceedings that constitute an abuse of the court's process if permitted to proceed without an order for security for costs. Therefore, if I were to make an order for security for costs at this stage of the proceedings, I would be precluding the applicant from pursuing a bona fide claim.

35 However, I note that I consider that it would be an abuse of process for the applicant to continue to prosecute the proceedings relying only on the affidavit of Mr Sales-Cini if the orders sought in the notice of motion are not granted.

36 Further, whilst I accept the second respondent's submissions that the public interest has largely been served through the assessment of the development application, this does not preclude me from being satisfied that the proceedings are brought in the public interest. The evidence of the applicant is that he is an Aboriginal Traditional Owner of the Darkinjung people. I note that, as set out earlier, a report was obtained from the Darkinjung Land Council in relation to their assessment of the development site. Notwithstanding this, I accept that for the purposes of the present application, the proceedings are brought in the public interest on the basis that the applicant will not derive any personal benefit from the proceedings and that the proceedings are brought to enforce compliance with the National Parks and Wildlife Act 1974 and protect Aboriginal sites. In that regard, I accept that the findings of the Court in Carriage v Stockland (Constructors) Pty Ltd (No 2) and Williams v Pardoe apply to these proceedings.

37 Similarly, I accept that the reasoning of the Court in Carriage v Stockland (Constructors) Pty Ltd (No 2) in relation to open standing provisions applies to these proceedings. That is, where the proceedings involve an issue raised by an Aboriginal elder in relation to the protection of Aboriginal relics, it is unlikely that a pool of litigants exist who have the financial means to step forward to pursue the litigation.

38 In exercising my discretion to determine whether I ought to make an order for security for costs, it is clear that the provision of access to justice to the applicant to enable him to pursue a bona fide claim outweighs the perceived injustice caused to the second respondent in the event that it is left with unrecovered costs. Accordingly, at this stage of the proceedings I ought not to make an order that will stifle the applicant's bona fide claim. The applicant is entitled to pursue his claim in relation to compliance with ss 87 and 90 of the National Parks and Wildlife Act 1974 by taking steps (by way of pursuing the notice of motion filed 10 July 2009) to engage an expert to prepare a report in relation to whether the development site contains Aboriginal objects that may be destroyed or defaced by the development itself. I note, however, that if the Court finds that those steps are not appropriate, then it may be that the issue of security of costs ought to be re-visited. Nonetheless, at this stage of the proceedings the applicant ought not be precluded from taking steps to pursue a legitimate claim and therefore I decline to make the orders sought in the notice of motion filed 8 July 2009. Accordingly I make the following orders: 1. The Notice of Motion filed by the second respondent on 8 July 2009 be dismissed; 2. The question of costs of the Notice of Motion be reserved.

23/11/2009 - Amendment to catchword - Paragraph(s) Catchword removed 26/11/2009 - Typographical error - Paragraph(s) 6, 33

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