Andrew Donnelly & David Mundine v Tenterfield Shire Council [1998] Nswlec 199 (24 August 1998)

[1998] NSWLEC 199

Land and Environment Court

of New South Wales

CITATION:	ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL [1998] NSWLEC 199 (24 August 1998) [1998] NSWLEC 9
PARTIES:	ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL [1998] NSWLEC 199 (24 August 1998)
FILE NUMBER(S):	40295 of 1997
CORAM:	Talbot J
KEY ISSUES:	:- Costs - public interest litigation
LEGISLATION CITED:	EPA Act Land and Environment Court Act 1979 s 5(c)
CASES CITED:	Oshlack v Richmond River Shire Council & Anor (1994) 82 LGERA 236 at p 246 ; South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation & Land Management (1998) 72 ALJR 1008 at 1009 ; Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27
DATES OF HEARING:	26 June 1998,13,28 July 1998, 21 August 1998
DATE OF JUDGMENT:	08/24/1998
LEGAL REPRESENTATIVES:	Mr E Neumann (Solicitor) First Respondent Ms J Smithson-Amy (Solicitor) Second & Third Respondents Mr C Ireland (Solicitor)

JUDGMENT:

REASONS FOR JUDGMENT

1. The determination of the issues in these proceedings is explained in my reasons published on 9 July 1998 in regard to an order for costs made against the applicants in favour of the second and third respondents.

2. The applicants now contend in response to an application for an order for costs by the first respondent council that, as a result of the very special relationship between aboriginal traditional owners and their land, this is a matter of significance in the nature of a test case in respect of the applicability of protection afforded to native title under New South Wales planning laws. Accordingly, they assert the proceedings are public interest litigation.

3. The council had a direct interest in the outcome of the proceedings as the owner of, and responsible statutory authority for, the road to which part of the challenge related. The interest of the council in the outcome was therefore distinct from the interest of the second and third respondents and the Minister, who appeared.

4. The appearance by, and the participation of, the council did not extend the hearing time in any material way. Nor did it result in unnecessary duplication of argument.

5. The arguments raised by the second and third respondents’ Notice of Motion were supported by the council and foreshadowed as matters which it proposed to argue independently.

6. Although the orders that the applicants were seeking might have ultimately lead to public benefit, the issues raised for determination by the Court were concentrated on the alleged rights of the traditional owners to be regarded as owners, in particular for the purposes of the EPA Act.

7. The issues recognised by Stein J in Oshlack v Richmond River Shire Council & Anor (1994) 82 LGERA 236 at p 246 “result(ed) in important interpretation of new provisions relating to the protection of endangered fauna”.

8. Although the determination of the issues in this case could have implications for the council, native title claimants, developers and the public, and in that sense might be characterised as public interest litigation, the High Court appears to have agreed with Stein J that “something more” is required before a successful defendant will be denied costs.

9. Kirby J observed in South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation & Land Management (1998) 72 ALJR 1008 at 1009 as follows:-

One of the particular considerations in Oshlack which led to confirmation of Stein J’s order in the Land and Environment Court of New South Wales, to the effect that a successful local government body not have its costs against an individual seeking to enforce environmental legislation, was the existence in that case of special legislation in New South Wales facilitating an “increased opportunity for public involvement and participation in environmental planning and assessment” (Land and Environment Court Act 1979 s 5(c)) and enlarging the standing rules to permit that to be done (EPA Act s 123).

10. Although s 123 relieved that applicants of any requirement to obtain the Attorney General’s fiat in respect of claims arising under the EPA Act, it is arguable in the circumstances that the nature of the right they were seeking to enforce as persons having an interest in land as the holders of native title could have satisfied the requirements of standing ( Onus & Anor v Alcoa of Australia Ltd (1981) 149 CLR 27).

11. The proceedings have been discontinued. The Land and Environment Court Rules provide that, on discontinuance, the discontinuing party should pay the costs of the other parties (Part 11 Rule 5(1)).

12. The Court is not satisfied that, in the present case, there are any special or exceptional circumstances which justify a departure from the conventional exercise of judicial discretion in favour of a successful party. I have taken into account the public interest claim by the applicants. Nevertheless, I have not been persuaded that it was sufficient to deprive the council of an order to compensate it against the expense of defending the proceedings.

13. The applicants are ordered to pay the costs of the first respondent in respect of the whole of the proceedings.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT.

Associate