Andrew Donnelly v Delta Gold Pty Limited

[2002] NSWLEC 44

Land and Environment Court

of New South Wales

CITATION:

Andrew Donnelly v Delta Gold Pty Limited and Ors. [2002] NSWLEC 44 revised - 14/05/2002

PARTIES:

APPLICANT:
Andrew Donnelly

RESPONDENTS:
Delta Gold Pty Limited and Ors.

FILE NUMBER(S):

40098 of 2000

CORAM:

Bignold J

KEY ISSUES:

Costs :- class 4 proceedings - Exercise of statutory discretion - relevant public interest considerations justify a department from the usual rule reflecting the compensatory principle

LEGISLATION CITED:

Land and Environment Court Act 1979, s 69
Protection of the Environment Operations Act 1997, ss 58, 252 and 253

CASES CITED:

Oshlack v Richmond River Council (1998) 193 CLR 72;
Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1998) 105 LGERA 354

DATES OF HEARING:

13 November 2001

DATE OF JUDGMENT:

03/27/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Larkin, Barrister
SOLICITORS
Environmental Defender's Office

RESPONDENTS:
1-4th Respondents Mr D Miller, Barrister
Fifth Respondent Mr C Leggatt, Barrister
SOLICITORS
1-4th Respondents Phillips Fox
Fifth Respondent
Solicitor Environment Protection Authority

JUDGMENT:

IN THE LAND AND

Matter No. 40098 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

27 March 2002

ANDREW DONNELLY

Applicant

v

DELTA GOLD PTY LTD

First Respondent

ROSS MINING N.L.

Second Respondent

CAPRICORNIA PROSPECTING PTY LTD

Third Respondent

TIMBARRA GOLD MINES PTY LTD

Fourth Respondent

ENVIRONMENT PROTECTION AUTHORITY

Fifth Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By their separate Notices of Motion, the first to fourth Respondents and the fifth Respondent seek an order for costs in their favour in respect of class 4 proceedings brought against them by the Applicant which proceedings were dismissed by my judgment delivered on 23 March 2001 and reported in 113 LGERA 34 when I made the following orders—

1. The Applicant’s Motion filed 16 January 2001 for leave to reopen his case is dismissed.

2. The relief claimed in the Applicant’s aforesaid Motion is refused.

3. The Applicant’s Class 4 application is dismissed.

4. The question of costs is reserved.

2. The Applicant who was not legally represented in the substantive proceedings was represented by Counsel instructed by the Solicitor for the Environmental Defender’s Office on the hearing of the costs Motions, resists the costs orders claimed against him. He asks the Court in the exercise of its discretion to order that each party bear its own costs of the litigation on the basis that the litigation was “public interest’ litigation in respect of which he had nothing to gain personally, and which involved the judicial elucidation of important provisions of the Protection of the Environment Operations Act 1997 (the PEO Act), and in particular s 58 and 252 and 253 of that Act.

3. The Respondents, for their part, submit that in the exercise of the Court’s statutory discretion in terms of the Land and Environment Court Act 1979, s 69(2) (the LEC Act), the Court will conclude that no case has been established by the Applicant to displace the ordinary or general practice of the Court to award costs in favour of the successful litigant in civil enforcement proceedings in class 4 of the Court’s jurisdiction.
B. THE COURSE AND OUTCOME OF THE SUBSTANTIVE PROCEEDINGS

4. By his amended class 4 application filed on 12 July 2000, the Applicant, who is an authorised representative of the Wahlabul/Malerah Bandjalung Aboriginal Communities and has claimed, pursuant to the Native Title Act 1993 to be a traditional custodian of the land and waters covered by Mining Lease 1386 (upon which land a goldmine had in the past few years been established and operated by or on behalf of the First to Fourth Respondents but in mid 2000 had been placed on a “care and maintenance” contingency basis) claimed declaratory and injunctive relief against the Respondents as follows—
(i.) a declaration that the variation of licence granted on 23 June 2000 by the Fifth Respondent to the Fourth Respondent pursuant to the Protection of the Environment Operations Act 1997 (PEO Act) was null and void for failing to comply with s 58(6) of that Act;
(ii.) an injunction restraining the First, Second, Third and Fourth Respondents from carrying out activities pursuant to the Licence Variation;
(iii.) a mandatory injunction for the removal of all infrastructure installed to carry out the activities pursuant to the Licence Variation and for the rehabilitation of the land affected by that infrastructure;
(iv.) a declaration that the application made for the Licence Variation was invalid for failing to comply with the PEO Act s 59(2);
(v.) a declaration that the carrying out of the activities purported to be authorised by the Licence Variation involved a breach of the National Parks and Wildlife Act 1974 s 118D (NP&W Act);
(vi.) a declaration that the First, Second, Third and Fourth Respondents had breached a number of conditions of Mining Lease 1386; and
(vii.) various alternative remedies in respect of the alleged breaches of the Mining Lease conditions.

5. Except for some specific allegations of breaches by the Third Respondent of the conditions of Mining Lease 1386 (which had been granted to the Third Respondent in 1996 to permit gold mining on an area of some 400 ha of Crown land situate on Timbarra Plateau) the Applicant’s claims were directed at a particular activity which had only very recently commenced to be undertaken on the site of Mining Lease 1386 for a few days before the proceedings were brought, namely the discharge to land by spray irrigation of treated waste waters then stored in the raw water pond (part of the water storage infrastructure established at the Mine) being waste waters that had been generated by mining operations undertaken prior to June 2000 (when mining operations comprising the mining and processing of ore ceased, and the mine was placed on a care and maintenance contingency basis).

6. Before commencing to discharge those waste waters, the Fourth Respondent had sought and obtained from the Fifth Respondent a variation of its existing pollution control licence (granted to the Fourth Respondent on 1 January 1999) to authorise the installation and operation of additional discharge points within the site of Mining Lease 1386 for the discharge of waste waters via spray irrigation to (i) an area of forest land of some 10 ha situate in close proximity to the raw water pond; and (ii) an area of land comprising some 8 ha being cells 11 to 20 of the heap leach pad that had been established as part of the infrastructure of the mining operations (but had not been used for that purpose).

7. The Applicant’s principal claim advanced at the hearing was that the spray irrigation of waste waters authorised by the Licence Variation was an unlawful activity because the Licence Variation was itself invalid by reason of the failure by the Fifth Respondent to call for, and to consider, public submissions, in alleged breach of the PEO Act, s 58(6), before it granted the Licence Variation on 23 June 2000. (Additionally, there was a discrete claim for invalidity of the Licence Variation based upon the formal content of the application which gave rise to the grant of the Licence Variation.) The terms of s 58(6) and other relevant provisions of the PEO Act are recited and discussed in my earlier judgment and are accordingly not reproduced here.

8. Irrespective of whether the spray irrigation activity was lawful or unlawful in terms of the PEO Act, the Applicant further contended that the activity would involve a breach both of the NP&W Act s 118D and of a particular conditions of Mining Lease 1386.

9. The hearing of the proceedings was expedited soon after they were commenced on 30 June 2000, when on that day, after a brief contested hearing, I granted an interim injunction restraining the First, Second, Third and Fourth Respondents from acting upon the Licence Variation which had been granted to the Fourth Respondent by the Fifth Respondent on 23 June 2000, authorising (i) the installation of additional discharge points for the discharge of treated waste waters from the Gold Mine operation; and (ii) the disposal to land by spray irrigation method of treated waste waters stored at the mine.

10. On 7 July 2000, after a longer contested interlocutory hearing, I continued the interim injunction but expedited the final hearing of the class 4 application. The final hearing was conducted over a period of 11 days, commencing on 20 July 2000 and concluding on 10 August 2000 when judgment was reserved.

11. In his final address Senior Counsel, on behalf of the First to Fourth Respondents, urged me to discharge the interim injunction now that I had heard the entire case and was obviously far better placed than I had been when originally granting the interim injunction (and thereafter continuing it), in evaluating the merits of the competing cases. On that occasion, I declined to immediately discharge the interim injunction but indicated that I would revisit the question if I had not delivered final judgment by 18 August 2000, in recognition of the fact that in practical terms, spray irrigation of the treated waste waters would cease to be an available option to the First to Fourth Respondents with the onset of the wet season commencing at the end of Spring of 2000 with the predicted consequent environmental risk from the stormwater capacity of the storage facilities failing to cope with the stormwater runoff likely to be experienced at the mine during the upcoming wet season. On 23 August 2000, final judgment not having been delivered in the proceedings, I discharged the interim injunction from midnight 25 August 2000 for the reasons given in my judgment delivered on that day in the knowledge that the Respondents desired to forthwith commence the spray irrigation program authorised by the Licence Variation, and upon the basis of my assessment that the Applicant’s case presented at the final hearing did not justify either a continuance of the interim injunction, or the grant of a permanent injunction.

12. Finally, I should mention the fact that on 16 January 2001, the Applicant filed a Notice of Motion seeking inter alia leave for the Applicant to reopen his case to enable him to adduce evidence that the First to Fourth Respondents “had breached the Licence Variation”. The Motion also claimed an injunction restraining the First to Fourth Respondents from carrying out the spray irrigation activity pursuant to the Licence Variation. The Vacation Judge adjourned the Motion to 29 January 2001 to be heard by me as the trial Judge. The Applicant’s Motion which was resisted by all Respondents was heard on 29 and 30 January 2001 when judgment was reserved. In reserving judgment, I informed the parties that obviously I would not deliver my reserved judgment on the final hearing until I had delivered judgment on the Applicant’s Motion to re-open his case but that if the Motion failed, I would contemporaneously give final judgment in the proceedings. In the result, I adopted the latter approach.

13. In my reasons for judgment in the substantive proceedings, I made the following findings—

(i) The duty imposed by the PEO Act, s 58(6) to invite and to consider public submissions was not enlivened in the present case and that in consequence, the grant by the fifth Respondent of the Licence Variation did not involve a breach of the PEO Act: at par 263.

(ii) The Applicant had not established a failure on the part of the fifth Respondent when granting the Licence Variation to consider the impact of the proposal on aboriginal relics: at par 270.

(iii) The Applicant had failed to establish the invalidity of the application made by the fourth Respondent to vary its Licence: at pars 282, 283 and 284.

(iv) The Applicant had failed to establish its allegation that the spray irrigation activity involved a breach of the National Parks and Wildlife Act 1974 s 118D: at par 295.

(v) The Applicant had failed to establish any entitlement to relief in respect of any or all of its allegations of breaches by the third Respondent of relevant conditions of Mining Lease 1386: at par 241.
(vi) The Applicant’s application to re-open his case to allege breaches of conditions of the Licence Variation and to claim interim injunctive relief should be refused in the exercise of judicial discretion: at par 354.

14. It follows from these findings that the Applicant’s case had wholly failed.
C. THE RELEVANT PRINCIPLES FOR THE EXERCISE OF THE STATUTORY DISCRETION ON COSTS IN THE PRESENT CASE

15. The present case involves the same kind of relationship between (i) the civil enforcement proceedings brought by a citizen pursuant to the open standing provisions of the PEO Act, ss 252 and 253; and (ii) the exercise of the Court’s statutory discretion pursuant to the LEC, s 69(2), as existed in Oshlack v Richmond River Council (1998) 193 CLR 72 (where the proceedings had been brought pursuant to the Environmental Planning and Assessment Act 1979, s 123).

16. In that case, a majority of the High Court, reversing the decision of the Court of Appeal and upholding the decision of the trial judge (Stein J when a judge of this Court) held that the following considerations (which Stein J had taken into account) were relevant to the exercise of the statutory costs power conferred upon this Court by the LEC Act, s 69(2)— (i) characterising the nature of the litigation as being concerned with public rights rather than private rights; (ii) finding that the applicant’s pursuit of the litigation was motivated by his desire to ensure obedience to environmental law….with nothing to gain from the litigation “other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna”; (iii) the fact that there was a significant number of members of the public sharing the applicant’s concern in the litigation; and (iv) the fact that the basis for challenge was arguable and had led to a judicial decision resolving significant issues in the interpretation of new laws protecting endangered fauna: see at p 91 in the joint judgment of Gaudron and Gummow JJ and at pp 123 and 124 per Kirby J who there said:

The Council argued that the costs discretion had miscarried because of the reference to an indeterminate class of public interest litigation. It was submitted that this concept introduced a nebulous consideration of a social, economic or political kind. It was unhelpful as a criterion authorising departure from the ordinary compensatory principle. I agree that it is difficult to define with precision what is meant by public interest litigation. Stein J acknowledged this. However, the series of cases to which his Honour referred illustrates, clearly enough, that in this country, as well as in England (225), New Zealand (226), Canada (227) and elsewhere (228) a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration (229). Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant.

(225) Donald Campbell & Co v Pollak [1927] AC 732 at 811-812.

(226) Ratepayers and Residents Action Association Inc v Auckland city Council [1986]

(227) Mahar v Rogers Cablesystems Ltd (1995) 25 OR (3d) 690 at 703-704; Reese v Alberta [1993] 1 WWR 450.

(228) /Southeast Alaska Conservation council Inc v State of Alaska (1983) 665 P 2d 544 at 553-554.

(229) R v Archbishop of Canterbury [1902] 2 KB 503 at 572; Latoudis v Casey (1990) 170 CLR 534 at 550, citing Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92.

17. The joint majority judgment had earlier noted at 84, in respect of the appellant’s submission that the case fell into the category of “public interest litigation”:

This is a nebulous concept unless given, as the primary judge did in the present case, further content of a “ legally normative nature”.

18. Their Honours’ reference to what Stein J had done to give content to the epithet “public interest litigation” is a reference to the matters referred to in his Honour’s judgment which are summarised in the preceding paragraph of these reasons, being matters which the majority judgments in Oshlack held to be relevant considerations in the exercise of the costs power conferred by the LEC Act, s 69(2).

19. Since the decision of the High Court in Oshlack, there have been many decisions of this Court on the exercise of the statutory costs power in civil enforcement proceedings (which decisions have invariably cited the decision in Oshlack) where costs have been awarded against the non-successful litigant, even where it has been held that the proceedings have a “public interest” element in them.

20. However, since those decisions depend upon their own facts, for present purposes, it is, I think more instructive to refer to only one such decision of this Court, namely the decision of the Chief Judge in Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1998) 105 LGERA 354 because it helpfully enumerates the following principles relevant to the exercise of the costs discretion conferred by the LEC Act, s 69(2) which the Chief Judge deduced from Oshlack and other authorities—

(1) The discretion conferred upon the Court by s 69(2) is wide and unconfined: Oshlack at 180, 205.

(2) It is, however, a discretion which must be exercised judicially, that is to say, not arbitrarily and not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation: Oshlack at 180; Latoudis v Casey (1990) 170 CLR 534 at 557; Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGRA 381 at 384.

(3) Nonetheless, principles have been laid down to guide the exercise of such discretion in the interests of consistency of approach: Latoudis v Casey at 541.

(4) One such principle is that, ordinarily, costs follow the event; that is, costs are awarded to the successful party as compensation for the costs incurred: Latoudis v Casey at 567; Oshlack at 213.

(5) However, the principle that costs follow the event is not a fixed or absolute rule: Oshlack at 186, 213.

(6) This Court, in exercise of its discretion under s 69(2), must take into account all relevant factors, which in proceedings which have been brought pursuant to the open standing provision contained in s 123 of the EPA Act, may include factors which have a public interest nature: Oshlack at 187.

(7) The consideration of all relevant factors may lead to a finding that special circumstances exist for departing from the general rule that costs follow the event and may lead to a consequent determination that there be no order as to costs (as occurred in Oshlack at first instance: see Oshlack v Richmond River Council (1994) 82 LGERA 236.

(8) Public interest factors are not, however, determinative factors; they are merely relevant factors to consider. In other words, factors based on the public interest nature of the litigation do not give the applicant automatic immunity from a costs order: Oshlack at 214.

(9) Nor is it necessary that the Court go through a process of characterisation of the litigation as public interest litigation. What is required is for the Court to consider all relevant factors, including factors of a public interest nature: Oshlack at 182.

(10) A shopping list approach should also be avoided. The factors which Stein J (as he then was) took into account in Oshlack at first instance should not be elevated to a fixed list, each item of which the Court, in a particular application for costs, merely ticks with approval or rejects with a cross. Such a mechanically rigid approach is not appropriate: Oshlack at 213.

21. I would respectfully adopt those 10 principles in exercising the statutory discretion in the present case.

D. ADJUDICATION ON THE DISPUTED COSTS CLAIMS

22. I propose to consider the matters that are relied upon by the Applicant to justify a departure from the ordinary rule or practice that costs are generally ordered in favour of the successful litigant in class 4 proceedings. These are matters that are relevant to the exercise of discretion, conformably to the majority judgments in Oshlack:—

(i) the public interest nature of the litigation;

(ii) the Applicant’s motive in prosecuting the case; and

(iii) the elucidation by the trial judgment of aspects of the PEO Act.

23. Considerations (i) and (ii) can be considered in tandem. Relevant to each of them is the affidavit sworn by the Applicant on 8 November 2001 in which he states:

1. I am the son of Andy Donnelly whose father was Richard Donnelly the song man of the Bandjalung aboriginal people and custodian of the knowledge of his djuberul from his grandfather Wulul Wulul.

2. The Timbarra Plateau is a place of great ceremonial significance to the Bandjalung people.

3. I was born and raised in Bayugil Community. I spent my growing up years with my uncles, aunts, cousins and grandparents hunting, fishing, camping, travelling, making traditional implements such as cutting bark and spears on land in and around the Timbarra Plateau. It was through this upbringing with my extended family that knowledge of our lore and my obligations was taught to my generation by our Elders. I believe that the land and the lore belonging to us Bandjalung people are like parts of our bodies and have been since time began.

4. The Timbarra Plateau is a holy, sacred and special place for my people, the Bandjalung people. It has been the site of sacred ceremonies where laws were passed down from one generation to the next for centuries.

5. My custodial obligations passed to me through my grandfather include the protection of sacred sites, looking after ceremonies and other secret business.

6. It is my custodial obligation as a traditional owner to make sure that the sacred areas, the animals, land, water, plants, rocks and mountains are looked after properly and respected. It is these things which are the wealth of future generations. The rare medicinal plants and pure water in the Timbarra Plateau area are two of the resources which needed to be preserved which belong to our people.

7. It is also my custodial obligation to protect the cultural heritage and environment of the Timbarra Plateau area for the Australian community as a whole. The Clarence River of which the Timbarra Plateau is a part is a vital ecosystem relied on by the community living along its length for livelihood, cultural enrichment and recreation.

8. I have worked for many years to save the Sacred Timbarra Plateau from desecration.

9. I thought that in my role as a traditional custodian I was obliged to bring these proceedings. This is because I could not ignore the actions of the respondents in relation to mining activity that I believe was harmful to the Clarence River.

24. The Respondents objected to this evidence, on the ground that it asserted “subjective motivation” on the part of the Applicant in bringing the proceedings. They rely upon the following statement from Kirby J’s judgment in Oshlack at 125:

The issue is not the subjective motivation of the litigant but the public or private character of the litigation.

25. In my judgment, the evidence is admissible as being relevant to both the Applicant’s subjective motivation and to the character of the proceedings. Clearly, that character is public rather than private, based upon the content of the Applicant’s affidavit.

26. In my opinion, the litigation was advancing the public interest insofar as the Applicant was seeking to stop an activity which he apprehended was inimical to the environment of the Timbarra Plateau (the land, water, animals and plants) and to the sacredness of the Timbarra Plateau to the Bandjalung aboriginal community in respect of which the Applicant had custodial obligations. Protection of the environment and the provision of increased opportunity for public involvement and participation in environment protection are two important and specific objects of the PEO Act vide s 3(a) and (b)

27. I am also satisfied that the Applicant had nothing personal to gain from the litigation which he conducted with a deep sense of responsibility for the Bandjalung community and their association with Timbarra Plateau.

28. Although the Applicant’s case wholly failed, did it yield any public benefit by way of the judicial elucidation of the PEO Act? Certainly a number of important provisions of that Act were judicially considered for the first time. I am here referring to s 58 and ss 252 and 253. Another very important aspect of the case was my conclusion that the proceedings involved not the judicial review of the fifth Respondent’s decision to grant the Licence Variation, but the enforcement of an alleged breach of the PEO Act in which the question relevant to s 58(6) of whether the “licence variation will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence” was a jurisdictional fact, and accordingly must be decided by the Court for itself on the available evidence.

29. In so holding, it is important to note that I rejected the submissions advanced by all Respondents that s 58(6) did not involve a jurisdictional fact.

30. Unfortunately for the Applicant, who was not legally represented, this key question was not soundly grasped at the outset of the litigation and the Applicant’s agent, Mr Oshlack, a non lawyer, who represented the Applicant in the litigation wavered in understandable ignorance throughout the case on this fundamental question.

31. However in contrast, the Respondents were legally represented by experienced practitioners, including Queen’s Counsel for the first to fourth Respondents, and it was their primary submission was that s 58(6) did not involve a jurisdictional fact. This was not a matter of academic interest—rather it profoundly affected the adjudication in the case and it should have informed the manner in which the case was conducted.

32. Notwithstanding the failure of this submission, the Respondents ironically ultimately benefited from my analysis of the true nature of the proceedings because they were able to rely upon expert evidence that cured a number of serious omissions and deficiencies in the expert material that supported the application made to the fifth Respondent when it made its decision to grant the Licence Variation (see at pars 192, 219 to 236 of my earlier judgment).

33. Although I also held, obiter, at par 194 that if the Applicant’s claim of breach of the PEO Act been confined to the Court’s judicial review of the decision of the fifth Respondent, I would have found that that claim had not been established, this obiter holding, does not alter the fact that there were serious omissions and deficiencies in the expert material that had been submitted to, and acted upon by, the fifth Respondent in granting the Licence Variation.

34. These facts concerning the manner in which the fifth Respondent came to grant the Licence Variation no doubt would have encouraged the Applicant to think that he had a strong case in impugning the fifth Respondent’s decision to grant the Licence Variation, especially in the light of (i) the fact that he had obtained an interlocutory injunction restraining the first to fourth Respondents from acting upon the Licence Variation; and (ii) he had obtained expert evidence to be adduced at the hearing which, based upon the omissions and deficiencies in the expert materials supporting the Licence variation application, emphasised the scientific doubt and uncertainty on the impact upon the natural environment of the spray irrigation of treated waste waters from the gold mining process (which process had employed cyanide).

35. Whereas expert evidence raising scientific doubts and concerns may have considerable cogency in the context of proceedings involving the judicial review of an administrator’s decision (such as that of the fifth Respondent to grant the Licence Variation in the present case) it was in the present case wholly inadequate to prove a positive case once the Court held that the question posed by the PEO Act, s 58(6) was for the Court to determine for itself, as a jurisdictional fact, based upon the evidence before the Court (and not that which was before the administrator when he made the decision under legal challenge).

36. Another important matter resolved by the case was the operation of the PEO Act, s 253 to enable the Applicant to seek relief in respect of a breach or threatened breach of other Acts, in this case the National Parks and Wildlife Act 1974 and the Mining Act 1992, by the carrying out of the spray irrigation activity authorised by the Licence Variation.

37. Although the Applicant failed to establish relevant breaches of these Acts, I did find that the Applicant had established a relevant breach of Condition 102 of the Mining Lease, which required the leaseholder to ensure “that the total storm storage capacity within the intermediate liquor storage, the pregnant liquor storage, the barren liquor storage and storm ponds is not less than 140ML”.

38. It was the first to fourth Respondent’s apprehension, if not concession, that this condition could not be fulfilled which prompted its urgent action to obtain approvals for the disposal of treated process waters by spray irrigation to land (see at par 164 of my earlier judgment) for a development that had originally been propounded on the basis that the management of waste water would be a “closed system” (see at par 141).

39. Although I found that there had been a relevant breach of Condition 102 (see at par 333), I nonetheless found that there was no evidence of that breach being a continuing breach at the date of hearing and that there had been no proof of “harm” being caused to the environment by virtue of that breach (see at pars 337 and 338).

40. Accordingly, I concluded (at par 339) that the breach of Condition 102 “though established is not within the Court’s jurisdiction”.

41. The foregoing discussion clearly establishes that important provisions of the PEO Act and especially s 58(6) were judicially explored and explained in the course of the proceedings, as was the true nature of the proceeding alleging a breach of s 58(6) and the Court’s proper adjudicative function in the proceeding.

42. Additionally, it demonstrates that the course of the proceedings could have been shortened by the Respondents (who were legally represented) appreciating the true nature of the proceedings, at least so far as concerns the Applicant’s claim of breach by the fifth Respondent of the PEO Act, s 58(6) when granting the Licence Variation which was by far the principal focus of the whole proceeding and occupied most of the hearing time.

43. Instead, their principal submission that the claim was to be adjudicated upon by way of conventional judicial review, not only was ultimately rejected by the Court, but produced the effect of a significant part of the proceedings unnecessarily examining the decision of the fifth Respondent to grant the Licence Variation. For example, Mr Dutaillis, who granted the Licence Variation on behalf of the fifth Respondent was not a necessary witness though he was in the witness box for the best part of three days (mostly under cross-examination by the Applicant).

44. In a case where the Applicant was not legally represented, but the Respondents were represented by very experienced practitioners, I think that the Respondents must be held to be partially accountable for the extended hearing time, which could have been avoided if the question of the true nature of the proceedings and the Court’s jurisdiction and adjudicative function in the proceedings, had been addressed at the outset of the case.

45. There is another feature of the proceedings for which I think the Respondents must be held accountable to some extent. This concerns the fact, already noted, that there were significant flaws or omissions in the expert materials submitted to the fifth Respondent by the first to fourth Respondents in support of their Licence Variation Application upon which the fifth Respondent clearly placed decisive reliance in granting the application.

46. A particularly important matter in this respect, concerns the scientific material that had been submitted to the fifth Respondent concerning the chemical composition of the treated waste waters proposed to be irrigated to land.

47. The absence from this material of testing of the treated wastewaters for the presence of numerous potentially toxic constituents such as “cyanate and thiocyanates” was regarded by Dr Moran, an expert from USA called in the Applicant’s case, as founding considerable scientific doubts and concerns arising from the fifth Respondent’s decision to grant the Licence Variation with the proposed land irrigation of treated process waters.

48. This evidence was ultimately answered when the first to fourth Respondents, in cross-examination of Dr Moran, put to him assumptions as to the analysis for the presence of cyanate and thiocyanate in sampled waste waters, which analysis was undertaken on 27 July 2000 (ie more than one month after the Licence Variation had been granted by the fifth Respondent and after the hearing of the proceedings had commenced).

49. Those test results were relied upon by Dr Dubos (a geochemist) in his third affidavit sworn on 4 August 2000 (see at par 241) and although I found that the relevant test results verified Dr Dubos’ opinions and conclusions, I also held that “Dr Moran was also vindicated by the belated evidence of those sampled measurements….” (see at par 243).

50. In view of the foregoing discussion, I think that the Respondents, to a fairly significant degree can be said to have brought the proceedings upon themselves by virtue of the omissions or flaws in the scientific materials supporting the Licence Variation application. Although the fifth Respondent granted the Licence Variation, it was not until after there had been a lively and earnest debate within the fifth Respondent’s community of scientists, who had expressed concerns about discharging to the environment by spray irrigation treated mine process waste waters, where cyanide had been employed in those mining processes.

51. All these factors would have induced the Applicant to believe that he had a good case for challenging the grant of the Licence Variation. His case had after all, been sufficient to obtain an interlocutory injunction, albeit it was discharged soon after the final hearing had been completed. In continuing the interlocutory injunction, I had relied upon the affidavit of Mr Milledge which had indicated that the ecological assessment of spray irrigating 10 ha of forested land had only considered 4 ha and was for that and other reasons clearly deficient.

52. However, as I have previously noted, the fact that the final hearing included a vast amount of scientific evidence, including some important evidence that overcame the omissions and deficiencies in the original scientific material provided by the same experts who gave evidence at the trial, and had also encountered the necessity for the Court to analyse the true nature of the proceedings and the Court’s jurisdiction and function to adjudicate thereon, ultimately operated in favour of the Respondents and made their cases at the final hearing considerably stronger than would have been the case had the adjudication merely concentrated on the state of the expert evidence available at the time that the fifth Respondent granted the Licence Variation. These matters mean that the Respondents’ submission that the case was a conventional judicial review case was not only wrong, but ironically the rejection of the submission ultimately operated to their forensic advantage, and inevitably weakened the Applicant’s case.

53. All the foregoing factors operate in favour of the Applicant and establish (i) that the litigation involved important matters of public interest; (ii) that the Applicant had nothing personally to gain from the proceedings; (iii) that important provisions of the PEO Act were judicially expounded; (iv) that the Applicant had an arguable case and was induced by the pre-litigation conduct of the Respondents to believe his case was strong; and (v) that the hearing was extended by the failure of the Respondents to appreciate the true nature of the proceedings. But the vital question remains, do these factors constitute special circumstances that justify a departure from the Court’s general practice, reflecting the ordinary rule in civil litigation that costs are generally ordered in favour of the successful litigant?

54. In Oshlack, Kirby J analysed the position, in relation to the exercise of the Court’s costs power, of a successful litigant in civil enforcement proceedings in the following propositions at 120 and 121—

(i) In the absence of special circumstances, the successful party has a reasonable expectation of obtaining an order for costs in its favour unless for some reason connected with the case a different order was specially warranted; and

(ii) It is because the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for the costs incurred, that the ordinary principle observed in civil litigation is that legal costs will usually be ordered in favour of the successful party.

55. However, his Honour in the immediately following passage at 122 harmonises that analysis of the position of a successful litigant with the context and purpose of litigation such as the present which was brought pursuant to the open standing provisions of the POE Act, ss 252 and 253 (that can be directly assimilated with similar provision contained in the EP&A Act, s 123) to enforce compliance with environmental protection laws.

Given that statutory context and the clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of Parliament’s particular purposes. The compensatory principle is adequately reflected by the adoption of a general practice by which, ordinarily (including in a case brought by a party under the open standing rule and purportedly in the public interest) costs are ordered in favour of the successful party. However, the general objects of the legislation must also find reflection in orders providing for costs. Regard may therefore be had to any public interest served by the party which has initiated the litigation, although it is ultimately unsuccessful. It has often been said that costs are not awarded against such a party as a punishment (219). Nor are they awarded to express disapproval of the public or private inconvenience which that party has caused. If the party unreasonably pursued, or persists with, points which have no merit, such conduct will constitute a consideration relevant to the ordering of costs, even in circumstances where that party is generally successful (220).

(219) Cilli v Abbott (1981) 53 FLR 108 at 111; Latoudis v Casey (1990) 170 CLR 534 at 543, per Mason CJ
(220) Latoudis v Casey (1990) 170 CLR 534 at 544, per Mason CJ.

56. In weighing all these competing factors, I have concluded that the special circumstances that I have identified which operate in favour of the Applicant ultimately outweigh in the present case the successful litigants’ legitimate expectation of a costs order pursuant to the compensatory principle, and accordingly justify a departure from the usual rule.

E. CONCLUSIONS AND ORDERS

57. For all the foregoing reasons, I have concluded that there should be no costs order made in favour of the Respondents in the present case, notwithstanding that the Applicant has wholly failed in his claims.

58. Accordingly, I order that each party bear its own costs in the proceedings.