Broadwater Action Group Inc v Richmond Valley Council (No. 2)
[2003] NSWLEC 289
•11/18/2003
>
Land and Environment Court
of New South Wales
CITATION: Broadwater Action Group Inc v Richmond Valley Council & Anor [No. 2] [2003] NSWLEC 289 PARTIES: APPLICANT:
Broadwater Action Group IncFIRST RESPONDENT:
SECOND RESPONDENT:
Richmond Valley Council
New South Wales Sugar Milling Co-operative LimitedFILE NUMBER(S): 10029 of 2003 CORAM: Lloyd J KEY ISSUES: Costs :- in Class 1 - separate determination of preliminary questions in planning and building appeal - status of practice direction - exceptional circumstances
Words and Phrases:- "exceptional circumstances"
Practice and Procedure:- abuse of process - instituting and continuing hopeless applications - inadequate advice - lay representatives
LEGISLATION CITED: Dust Diseases Tribunal Act 1989 s 19
Environmental Planning and Assessment Act 1979 s 5A, s 98(1)
Land and Environment Court Act 1979 s 63, s 69(2)
Land and Environment Court Practice Direction 1993 par 10
Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 31 r 1
Threatened Species Conservation Act 1995 Pt 3, Pt 6 Div 2CASES CITED: Berk v Woollahra Municipal Council (1992) 78 LGERA 180;
Bhamjee v Forsdick (No.2) [2003] EWCA Civ 1113;
Botany Municipal Council v Secretary, Department of Arts, Sport, Environment, Tourism and Territories (1992) 34 FCR 412, 76 LGERA 213;
Broadwater Action Group Inc v Richmond Valley Council & Anor [2003] NSWLEC 202;
Cadonia Pty Ltd v Leichhardt Council (NSWLEC, Bignold J, 5 August 1994, unreported);
Carver v Bankstown City Council [1999] NSWLEC 130;
CSR Ltd v Fairfield City Council [2001] NSWLEC 221;
Damjanovic v Maley (2002) 55 NSWLR 149;
Foboco Pty Ltd v Kiama Municipal Council (1998) 109 LGERA 160;
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397;
Gibson v Mosman Municipal Council (2001) 116 LGERA 397;
Mansfield v Wyong Shire Council (2000) 111 LGERA 403;
Maule v Liporoni [No.2] (2002) 122 LGERA 216;
Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673; (2001) 114 LGERA 376;
McDonald Industries Pty Ltd v Sydney City Council (1980) 43 LGERA 428;
Morris v Gosford City Council (NSWLEC, Bignold J, 29 November 1996, unreported);
Nazero Constructions Pty Ltd v North Sydney Council [No.2] [2002] NSWLEC 194;
NSI Group Ltd v Parramatta Council [2002] NSWLEC 76;
Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 96 LGERA 173;
Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365;
Prince v North Sydney Municipal Council (2001) 115 LGERA 65;
R v Riscutta and Niga [2003] NSWCCA 6;
Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153;
Rosniak v Government Insurance Office (1997) 41 NSWLR 608;
Scott Revay and Unn v Warringah Council (1996) 90 LGERA 78;
Smith v Randwick City Council [No.2] [2001] NSWLEC 88;
Teese v State Bank of New South Wales [2002] NSWCA 219;
Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council & Ors (2001) 116 LGERA 287;
Wyong Shire Council v Smith (NSWLEC, Bignold J, 24 December 1992, unreported)DATES OF HEARING: 11/09/2003 DATE OF JUDGMENT:
11/18/2003LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack (agent)
SOLICITORS:
N/AFIRST RESPONDENT:
SECOND RESPONDENT:
Mr D P Wilson (barrister)
SOLICITORS:
Wilshire Webb
Mr A M Pickles (barrister)
Acuiti Legal
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10029 of 2003
18 November 2003Lloyd J
- Applicant
- First Respondent
- Second Respondent
Introduction
1 On 11 September 2003 I determined two questions raised by the appellant, Broadwater Action Group Inc, separately from the other issues in the proceedings (Broadwater Action Group Inc v Richmond Valley Council & Anor [2003] NSWLEC 202). The first respondent, Richmond Valley Council (“the council”), now seeks an order that the appellant pay its costs of that hearing, the questions having been determined against the appellant.
2 The council had granted development consent to the second respondent, New South Wales Sugar Milling Co-operative Limited, for a co-generation facility, by which sugar cane waste from the Broadwater sugar mill is utilised in the production of electricity for use in the mill, with surplus electricity returned to the grid. The proposal includes a generating plant next to the mill, a stockpile of sugar cane waste (known as bagasse) on a grazing property nearby, and an overhead conveyor about 1.3 kilometres in length between the stockpile and the mill. The Broadwater Action Group, an objector to the development, appealed to the Court against the grant of development consent, as allowed by s 98(1) of the Environmental Planning and Assessment Act (“the EP&A Act”).
- Costs in Class 1 of the Court’s jurisdiction
3 Section 69(2) of the Land and Environment Court Act 1979 (“the Court Act”) states:
- (2) Subject to the rules and subject to any other Act:
- (a) costs are in the discretion of the Court,
(b) the Court may determine by whom and to what extent costs are to be paid, and
…
4 In Oshlack v Richmond River Council (1998) 193 CLR 72 at 81, 96 LGERA 173, Gaudron and Gummow JJ said (at 180 [22]):
- The terms of s 69(2) [of the Land and Environment Court Act] contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say, not arbitrarily, capriciously or so as to frustrate the legislative intent.
5 The parties have argued the question of costs on the common assumption that orders for costs are not generally made in proceedings in Class 1 of the Court’s jurisdiction unless the circumstances are exceptional. This common assumption is derived from par 10 of the Land and Environment Court Practice Direction 1993:
- [t]he practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional.
6 The validity of such a practice direction is questionable (Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673, 114 LGERA 376). Nevertheless, par 10 of the Practice Direction is merely declaratory of a long-standing practice of the Court and its predecessors (Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153 at 174; McDonald Industries Pty Limited v Sydney City Council (1980) 43 LGERA 428 at 445; Berk v Woollahra Municipal Council (1992) 78 LGERA 180; Prince v North Sydney Municipal Council (2001) 115 LGERA 65 at 69 [10] and Wilson on behalf of Gurrungar Environment group v Bourke Shire Council & Ors (2001) 116 LGERA 287 at [4]). The reason for the practice explained in the Court’s decisions is to encourage dissatisfied parties to seek review of planning decisions made by local councils rather than discourage them by burdening them, if unsuccessful, with the risk of an adverse order for costs.
7 The parties have also argued the question of costs on the common assumption that the practice of the Court as to costs in proceedings in Class 1 of its jurisdiction extends to the hearing and determination of questions separately from the other issues. This assumption is consistent with the prevailing approach followed by judges of the Court (Cadonia Pty Ltd v Leichhardt Council, NSWLEC, Bignold J, 5 August 1994, unreported; Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365; CSR Ltd v Fairfield City Council [2001] NSWLEC 221 per Pearlman J; Nazero Constructions Pty Ltd v North Sydney Council [No. 2] [2002] NSWLEC 194 per Lloyd J; NSI Group Ltd v Parramatta Council [2002] NSWLEC 76 per Lloyd J; Mansfield v Wyong Shire Council (2000) 111 LGERA 403 per Talbot J; Foboco Pty Ltd v Kiama Municipal Council (1998) 109 LGERA 160 per Sheahan J; and Scott Revay and Unn v Warringah Council (1996) 90 LGERA 78 per Pearlman J.
8 Contrary to the prevailing approach, however, and subsequently to the Court of Appeal’s decision in Maurici, in Gibson v Mosman Municipal Council (2001) 116 LGERA 397, Talbot J disregarded par 10 of the Practice Direction in making an order for costs following the separate determination of a preliminary question of law in a planning appeal. In that case, however, as appears from the reasons of Talbot J, the question raised the jurisdiction of the Court. Further, McClellan J, in his recent decision in Gee v Port Stephens Council [2003] NSWLEC 260, also disregarded par 10 of the Practice direction in making an order for the costs of the determination of a preliminary question of law in a planning appeal. McClellan J, having considered several decisions of the Court, adopted the reasoning of Stein J and Talbot J in their respective judgments in Nahum v North Sydney Municipal Council (1994) 83 LGERA 200 and Gibson. In disregarding the line of authority set out above, his Honour stated (at [56]) that where a preliminary question purely involves law or a combination of fact and law, the usual approach to costs in Class 1 appeals is inappropriate:
- [t]here will be many cases in class 1 and 2 where it is appropriate that there be no order as to costs. In my opinion this is likely to be the case where the issues in dispute are confined to merit considerations. However, a different approach may be required where a preliminary question is raised. If it happens that determination of the preliminary question will assist the commissioner who hears the merits of the matter by defining the content of limits on his or her discretion it is likely that no order for costs should be made. For example, the interpretation of [a] provision of a local environmental plan containing height or floor space control may be a circumstance where no order should be made. There will be others. However, where the preliminary point raised is said to preclude consent at all, the proceedings cease to have the character of [a] merits review and different considerations arise.
9 This appears to be a departure from the prevailing approach to costs in Class 1 proceedings. If orders were made for the costs of the separate determination of preliminary questions of law in planning appeals, it would defeat the purpose (described in par [6] above) of not making costs orders for ordinary merits appeals in Class 1 (see Nazero Constructions Pty Ltd v North Sydney Council [No.2] [2002] NSWLEC 194 at [4]). Such orders would necessitate the consideration by applicants, in instituting Class 1 proceedings, of costs implications in the event that the result of the separate determination of a question required to resolve their merit appeal is adverse to their cause.
10 The distinction between the determination of merit issues on discretionary planning grounds and determination of questions of pure law was not the foundation for the practice. Rather, it was that the parties were free to seek review of planning decisions without the threat of a costs order if unsuccessful (Outdoor, applied in Mansfield v Wyong Shire Council per Talbot J at 405). Notwithstanding Maurici, Gibson and Gee this remains the prevailing approach of the Court, as demonstrated by the long line of authority set out above. Those cases show that five judges of the Court have applied the practice of making no order for costs in the separate determination of preliminary questions in appeals in Class 1 of the Court’s jurisdiction (Pearlman, Bignold, Talbot, Lloyd and Sheahan JJ). Considerations of judicial comity suggest that I should follow and apply the prevailing practice
11 Further, the present application for costs, in contrast to Gee, is in relation to the determination of questions purely of fact. Evidence was heard on all the issues determined by the Court and no interpretation of the law was required. Further, the question determined in Gee related to the capacity of the council to grant an approval. Such a question is akin to the preliminary question posed in Gibson, which was, as noted above, one of the jurisdiction of the Court. Neither of these cases considered the merits of the application, unlike the matter the subject of the present application.
12 It is appropriate, therefore, that I adopt the parties’ common assumption, consistently with the prevailing practice in the Court, which was affirmed by Pearlman J in CSR subsequently to, and in consideration of, the decisions in Gibson and Maurici. That is, that costs in the separate determination of preliminary questions in planning and building appeals will not generally be ordered unless the circumstances are exceptional.
- The determination of the separate questions
13 In the present case, the two questions which were separately determined were:
(1) whether the development application and the environmental impact statement (“the EIS”) should have been accompanied by a species impact statement prepared in accordance with Div 2 Pt 6 of the Threatened Species Conservation Act 1995 (“the TSC Act”). Such a species impact statement is required if the application is in respect of development of land that is or is likely to significantly affect threatened species, populations or ecological communities, or their habitats; and
(2) the related issue of whether the flora and fauna assessment of the proposal was inadequate in measuring the impact of the proposal on a number of endangered species and whether the proposal should be refused on the ground of its impact on endangered species and their habitat.
14 I need not repeat the evidence on these questions, which is summarised in my previous judgment. After applying the so-called “eight-part” test required by s 5A of the EP&A Act to determine whether or not a species impact statement is required, I found it overwhelmingly clear that the proposed development is unlikely to have a significant effect on threatened species, populations or ecological communities connected with the subject site, or their habitat. Therefore, the submission of a species impact statement for the proposal was not required. The same finding also resolved the second question: the impact upon any species or their habitat will be so insignificant and so marginal that the development application could not be refused on that ground.
- The parties’ submissions
15 Mr D P Wilson, appearing on behalf of the council, relies upon the following submissions in support of the application for costs:
- (a) The case is unusual, giving rise to exceptional circumstances and warranting an order for costs. There is no indication that the EIS was read or understood in formulating the critique of it. In their expert reports, neither Mr Fitzgerald nor Dr Phillips (who gave evidence for the Broadwater Action Group) listed the EIS as a reference upon which they based their opinions, as required by par 3(d) of the Schedule to the Court’s Consolidated Expert Witness Practice Direction. Further, Dr Phillips only participated in the flora and fauna experts’ joint report: he did not prepare an independent evaluation of the proposal. According to the submission, Mr Fitzgerald and Dr Phillips thus exhibited little understanding of the impact of the proposal.
(b) In relation to the first question for determination, the Broadwater Action Group elicited no positive evidence in support of its claim that it was necessary for the development application to be accompanied by a species impact statement. In particular, no survey analysis was undertaken by its expert witnesses to demonstrate that it was likely that any threatened species would be significantly affected by the proposal.
(c) In relation to the second question for determination: (i) the species claimed to be at risk were not identified as being present at the site, and long before the hearing commenced it was established that no off-site impact would be attributable to the proposal; (ii) Mr Fitzgerald concurred with the second respondent’s experts in relation to the expected impact upon koala habitat, and Dr Phillips, albeit disagreeing, gave no contradictory evidence in support of the Broadwater Action Group’s claim; (iii) if the Broadwater Action Group’s witnesses had directed their minds to the proposal, the issue of possible detrimental effects on drainage patterns and faunal habitats would have been resolved before the hearing; (iv) Mr A Oshlack, the agent representing Broadwater Action Group, ignored the eight part test annexed to the EIS and which had been expressly carried out by Mr Parker in his report in reply; (v) contrary to the Mr Oshlack’s assertion, there is no reference in the evidence to a twenty-kilometre radius encompassing the area within which the impact of the development is to be examined: the closest reference is that of Mr Fitzgerald where he refers to an “ecological footprint”, without defining it.
16 Mr A Oshlack, appearing as agent for Broadwater Action Group, relies upon the following submissions:
(a) No exceptional circumstances exist in these proceedings, which would provide justification for an order for costs.
(b) The case is part heard and this complex part of the matter was completed within the allocated time.
(c) The council is a public authority which has not fully participated in the proceedings, relying upon the evidence adduced by the proponent of the development who, at this stage, has not applied for costs. Mr Oshlack cited the judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72. He did not, however, identify the particular principle in that decision upon which he relies.
(d) The proponent’s impression that the Broadwater Action Group’s expert witnesses misunderstood the development proposal is unfounded. Those witnesses were not cross- examined as to their supposed lack of understanding, nor as to whether or not they had considered the EIS in formulating their opinions.
(e) Dr Phillips and Mr Fitzgerald are well qualified, they gave their evidence succinctly, and had visited the site of the proposed development.
(f) A costs order against Broadwater Action Group may stifle the litigation.
- The conduct of the proceedings
17 The EIS exhibited by the council before it determined the development application had attached as appendices, inter alia, Mr Parker’s flora and fauna survey reports of May 2000 and June 2001. These reports contain site surveys of vegetation and fauna and discussion of their results, as well as consideration of the relevant legislation, culminating in an eight-part test required by s 5A of the EP&A Act. Mr Parker’s reasoned conclusion was that no threatened species, populations or ecological community or their habitat is likely to be significantly affected as a result of the proposal. Given this conclusion, no species impact statement is required for the development. The Broadwater Action Group, or those advising it, would thus have been aware, or ought to have been aware of this evidence well in advance of the commencement of the proceedings.
18 If Broadwater Action Group had been competently advised, such a key piece of evidence in favour of the proponent of the development would have ordinarily been duly considered in determining whether or not to raise the issue of flora and fauna impact in an appeal under s 98 of the EP&A Act. Further, prior to raising the issue, the Broadwater Action Group, if properly advised, would have obtained sufficient evidence to seriously challenge the findings and conclusions in the EIS, thereby necessarily addressing the eight-part test described in the legislation. In the absence of any such evidence, as was the case, the Broadwater Action Group would have been properly advised to withdraw the two issues from those to be dealt with in the appeal.
19 Instead, the Broadwater Action Group instituted the proceedings without first properly considering the evidentiary material in the EIS and the relevant statutory provisions. Further, it neglected to undertake any field surveys of the site, an omission greatly contributing to its poor command of the proposal’s potential impact. This ignorance of the impact permeated the entirety of the Broadwater Action Group’s conduct of this part of the appeal.
20 In relation to the question of whether a species impact statement was required, the Broadwater Action Group, whilst claiming that Mr Parker’s eight-part test was incomplete, seemed to ignore the evidentiary obstacles it had to overcome in order to be successful in its claim. It failed to adduce sufficient evidence to satisfy a single head under s 5A of the EP&A Act. Firstly, it neglected to identify a “viable local population” of any of the threatened species that it claimed to be disrupted by the proposal such as to be likely to be placed at risk of extinction: an integral pre-condition to the analysis under s 5A(a) of the EP&A Act. Further, where a “viable local population” was identified, there was no evidence of there being a likelihood that it would be significantly affected by the development.
21 Likewise, the Broadwater Action Group failed to establish the existence of any “endangered population” located on the site or in the surrounding area. Of course, this must be done in order to determine whether or not such a collectivity is likely to be disrupted so that the viability of the population is likely to be significantly compromised (see s 5A(b) of the EP&A Act).
22 Consistently with Mr Parker’s conclusion in the EIS, the evidence clearly demonstrated that very little known habitat of threatened species, populations or ecological communities would be modified or removed. Indeed, Mr Fitzgerald concurred with Mr Fanning (an expert witness for the proponent) in concluding that “the overwhelming majority of the area to be affected by the proposed activity is of no value as habitat for the [k]oala”. Dr Phillips disagreed with this assessment, but produced no evidence to the contrary. It is clear, therefore, that there was never any suggestion that a significant area of known habitat would be modified or removed - the threshold test the Broadwater Action Group had to satisfy under s 5A(c) of the EP&A Act. It necessarily follows, then, that there was no evidence whatsoever that any known habitat of a threatened species, population or ecological community could become isolated from currently interconnecting habitat as a result of the proposal (s 5A(d) of the EP&A Act).
23 Again, no “critical habitat” as defined in Pt 3 of the TSC Act is involved in or impacted upon by the development proposal. There was no evidence that the Minister has made any declaration in relation thereto to the land affected by or in the vicinity of the proposed development. Therefore, it was foreseeable from the earliest of stages in the litigation that the Broadwater Action Group simply did not have any evidence to demonstrate that “critical habitat” will be affected by the proposal, or to seriously challenge the findings and conclusions in the EIS.
24 Threatened species, populations and ecological communities are adequately represented in conservation reserves in the region (s 5A(f) of the EP&A Act). Mr Parker came to this conclusion in his report of May 2000 which was annexed to the EIS as exhibited by the council. Therefore, again, due to a complete lack of any probative evidence adduced by the Broadwater Action Group, it failed to discredit the evidence, the existence of which it was aware well before it commenced the proceedings.
25 Yet again, an inquisitive analysis of the proposal and perusal of the relevant legislation by the Broadwater Action Group before the hearing would have also disclosed that the proposal does not constitute a “threatening process” as defined in the TSC Act. The evidence was that no part of the proposal would constitute a possible threat to “the survival or evolutionary development” of any species, population of ecological community (s 5A(g) of the EP&A Act); and this evidence was uncontested.
26 Finally, in disputing Mr Parker’s finding that there are no threatened species, populations or ecological communities relevant to the proposal which are likely to be at the limit of its known range (s 5A(h) of the EP&A Act), the Broadwater Action Group adduced no evidence at all. Again, notwithstanding assertions from its expert witnesses, in the absence of any positive evidence from the Broadwater Action Group there was little hope of discounting the evidence to the contrary, evidence it knew it had to meet before the case began.
27 In relation to the second and related issue raised by the Broadwater Action Group, in the absence of a challenge of substance, the only authoritative evidence was that there would be no off-site impact at all; in particular, no detrimental effect upon drainage patterns, as was alleged. The state of the evidence resulted in only one possible conclusion: that the flora and fauna assessment for the proposal is adequate and does not form a ground upon which to refuse development consent - a conclusion that at an early stage would have been foreseeable by the Broadwater Action Group if it had been competently advised.
- Conclusions
28 In Oshlack v Richmond River Council, the traditional principles governing the Court’s jurisdiction to make orders for costs is explained by McHugh J (with whom Brennan CJ agreed) at 96-97:
- By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. …
The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [Latoudis v Casey (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ ]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
29 Kirby J, in Oshlack, also accepted (at 121) the compensatory principle and its application to orders for costs under s 69(2) of the Court Act. Kirby J further said (at 122):
- 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.
30 These principles have, of course, been modified in the case of proceedings in Class 1 of the Court’s jurisdiction, as explained in pars [5] to [12] above.
31 If the ordinary principles relating to costs in civil litigation were to apply, the conduct of the proceedings in the present case would not only attract an order for costs, but, for the reasons which follow, those costs would be ordered on an indemnity basis. If costs would otherwise have been ordered on an indemnity basis, that is an exceptional circumstance which, in my opinion, justifies the making of an order for costs in Class 1 of the Court’s jurisdiction.
32 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, Woodward J, in describing the nature of conduct constituting exceptional circumstances, said (at 401):
- I believe that it is appropriate to consider awarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.
33 This foundation for indemnity costs has been widened in subsequent cases. In Botany Municipal Council v Secretary, Department of Arts, Sport, Environment, Tourism and Territories (1992) 34 FCR 412; 76 LGERA 213, Gummow J, after citing Fountain Selected Meats, said (at 415; 217):
- However, I accept that the discretion conferred by s 43 is not so circumscribed that an order of this character may be made only against an ethically or morally delinquent party.
34 The approach in Fountain Selected Meats was accepted by Mason P (with whom Clarke A- JA agreed) in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616. In so doing, Mason P further stated that “[n]evertheless the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation.”
35 In the application of this line of authority, it has been held by this Court that instituting and continuing proceedings which are “hopeless” is conduct constituting “exceptional circumstances” (Wyong Shire Council v Smith, NSWLEC, Bignold J, 24 December 1992, unreported). In Morris v Gosford City Council (NSWLEC, Bignold J, 29 November 1996, unreported) indemnity costs were awarded against the applicant due to the deliberate decision by the applicant to continue with a claim that was hopeless. (See also Carver v Bankstown City Council [1999] NSWLEC 130 and Maule v Liporoni [No. 2] (2002) 122 LGERA 216).
36 It is clear, given the narrative described in pars [17] to [27] above, that the Broadwater Action Group acted capriciously, wilfully disregarding the known facts and established law in instituting and continuing proceedings which were hopeless. For example, Mr Oshlack in his submissions referred to what would happen in the unlikely event of an impact of the proposed development upon threatened species. But this is not the test. The test is whether there is likely to be a significant impact. If Broadwater Action Group had been properly advised, it would have known that its claims had no chance of success (Fountain Selected Meats, Wyong Shire Council v Smith, Morris v Gosford City Council). Broadwater Action Group’s continuation of the proceedings, therefore, amounted to an abuse of process which was exacerbated by the other parties being put to effort and expense well beyond what they could reasonably be expected to incur in litigation solely dealing with genuine issues (cf Maule v Liporoni at 229). Accordingly, an order for costs in favour of the council is warranted.
37 In light of the case law, it is clear that notwithstanding the absence of an ulterior motive or moral turpitude on its part, the conduct of this portion of the case demonstrates that the Broadwater Action Group, in commencing and continuing the substantive proceedings with flora and fauna impact as an issue, wilfully disregarded the known facts of the matter and the clearly established law (Fountain Selected Meats). Although the Broadwater Action Group’s conduct may not be described as vexatious, its conduct was clearly unreasonable (Rosniak v Government Insurance Office).
38 The Broadwater Action Group adopted a capricious “scattergun” approach, claiming that it was necessary for the development application to be accompanied by a species impact statement, without regard to whether or not there was any evidence in support of its claim, and where its own evidence plainly did not support its case.
39 Contrary to Mr Oshlack’s submission, the fact that the substantial proceedings are part heard is inconsequential to this application for costs. The costs the subject of the present application involve only those incurred in the separate determination of two preliminary questions as permitted by Pt 31 r 1 of the Supreme Court Rules 1970, which applies in this Court (Pt 6 r 1 of the Land and Environment Court Rules 1996). The determination of these questions stands regardless of the outcome of the remainder of the litigation.
40 As to Mr Oshlack’s submission that an order for costs against his principal would stifle the litigation, I simply observe that this has not been borne out. The balance of the case has been heard.
41 In Bhamjee v Forsdick (No. 2) [2003] EWCA Civ 1113, the Master of the Rolls, Lord Phillips, in delivering the judgment of the Court of Appeal, said:
- A court’s overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.
42 The present case brought by Broadwater Action Group was a hopeless application. The comments of Lord Phillips are apposite. The conduct of the proceedings in the present case justifies an order for costs against the losing party.
43 I should comment on Mr Oshlack’s reference to the joint judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council. The statement to which I think he was referring appears at 90 [46]:
- …In a significant number of such litigious disputes, it will, in accordance with the reasoning in R v Australian Broadcasting Tribunal; Ex parte Hardiman [ (1980) 144 CLR 13 at 35-36. See also Australian Conservation Foundation v Forestry Commission (1988) 76 LGRA 381 at 386; Kerr v Verran (1989) 28 IR 179 at 206; Vidler v Secretary, Department of Social Security (1995) 61 FCR 370 at 382-383 .], be entirely appropriate for, if not incumbent upon, the local government body not to assume the position of a protagonist and to avoid incurring substantial costs. The position of protagonist will be filled by the party against which injunctive relief is sought and which is the real contradictor in respect of the application for declaratory relief.
44 This statement is not binding on this Court. The dictum of Gaudron and Gummow JJ, though it is entitled to the greatest respect and though it is of persuasive value, is not an appellate decision of the High Court. It was not a statement which was joined in by the other members of that Court. It is a statement of opinion offered as dictum (cf R v Riscutta and Niga [2003] NSWCCA 6, per Heydon JA at [101]).
45 In the present case the council became a party upon being named as first respondent. The council thereby acquired all the procedural and substantive rights as a party. This includes its right to defend its determination of the subject development application. This in turn allows it to be legally represented. It allows it to rely upon any evidence it wishes, including the evidence adduced by the proponent of the development. The council sensibly mitigated its costs by not duplicating that evidence. Apart from the question of whether consent should be granted, the challenge to the development consent might have resulted in changed conditions of consent, which would be of interest to the council since it has to administer the consent and the conditions to which it may be subject. Moreover, the council had a duty to assist the Court in providing the information which the Court must have to enable it to make a determination.
46 The conclusion, then, is that the Broadwater Action Group, if properly advised, should have known that its case was hopeless. In applying what was said by Lord Phillips MR (par [41] above) it follows that there must be an order that the Broadwater Action Group pay the council’s costs of and incidental to the separate determination of the two preliminary questions which were determined by me on 11 September 2003.
47 The difficulty for the Broadwater Action Group in the present case is that it was not legally represented. It was represented by an unqualified agent. It is likely that if the applicant had been legally represented it would have been advised that the evidence did not come near to supporting its arguments and did not come near to meeting the statutory tests in s 5A of the EP&A Act.
48 The difficulty with representation by an unqualified agent is that such a person, unlike a lawyer, is unlikely to give objective and dispassionate advice to his principal or principals. I do not doubt the sincerity of the agent in the present case, who argued the matter at length and with rigour and thoroughness. The present case demonstrates, however, that it is not always appropriate for parties to be represented by unqualified agents. The shortcomings of doing so are explained by the Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 149. These shortcomings may be summarised as follows:
· Unqualified agents are not subject to any rules of the profession or disciplinary code;
· Unqualified agents, unlike barristers and solicitors, owe no duty to the court; there is a considerable importance for the administration of justice that those permitted to appear before the court owe a responsibility to it to ensure that the court is properly informed and not misled;
· Unqualified agents, unlike barristers and solicitors, owe no duty to their opponent;
· Unqualified agents are uninsured, thereby exposing their “clients” to substantial losses as a result of the mishandling of their cases;
· Cases in which unqualified agents appear are invariably longer, thereby incurring additional court time and additional costs to the other parties, who are often legally represented.
· Unqualified agents, unlike lawyers, are unlikely to be objective and removed from the emotions that generally arise in the heat of litigation (see also Teese v State Bank of New South Wales [2002] NSWCA 219, per Ipp AJA at [10]).
49 Time and again it has been said that denying representation to parties by unqualified agents amounts to limiting access to justice. However, any concern about limiting access to justice can be met by reserving the Court’s power to grant leave to appear in an appropriate case, as has been done in other jurisdictions For example, in the Dust Diseases Tribunal, unqualified agents cannot appear without leave. Section 19 of the Dust Diseases Tribunal Act 1989 may well be a model for a replacement of s 63 of the Land and Environment Court Act:
- 19 Right of appearance and representation before the tribunal
. Permitting unqualified agents to appear as of right on the ground of access to justice may, as the present case demonstrates, cause additional and unnecessary expenses for the other parties, a diversion of the Court’s resources from dealing with meritorious disputes and delay in the handling of those disputes.
- Orders
50 In the light of the above reasons the formal orders are as follows:
1. The application for costs on behalf of the first respondent in these proceedings, Richmond Valley Council, is allowed.
2. The applicant, Broadwater Action Group Inc, pay the first respondent’s costs of and incidental to the separate determination of the two preliminary questions.
3. The applicant, Broadwater Action Group Inc, pay the first respondent’s costs of this application for costs.
I hereby certify that the preceding 50 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
Dated: 18 November 2003Associate
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