Carriage v Stockland (Constructors) Pty Limited (No 2)
[2002] NSWLEC 121
•07/19/2002
Land and Environment Court
of New South Wales
CITATION: Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121 PARTIES: APPLICANT
Allan CarriageFIRST RESPONDENT
SECOND RESPONDENT
Stockland (Constructors) Pty Limited
Director-General National Parks and Wildlife ServiceFILE NUMBER(S): 0301 of 2002 CORAM: Talbot J KEY ISSUES: Costs :- security for costs
Practice and Procedure:- security for costsLEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123(1)
Land and Environment Court Act 1979 s 69(3), s 69(4), s 69(5), s 69(6)
National Parks and Wildlife Act 1974 s 176ACASES CITED: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67;
KP Cable Investments Pty Ltd v Meltglow Pty Ltd and Others (1995) 56 FCR 189;
Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32, unreported;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Rowley v New South Wales Leather and Trading Co. Pty Ltd and Woollahra Municipal Council (1980) 46 LGRA 250;
Town Watch Incorporated v Grafton City Council and Westlawn Investment Company Ltd (1997) 93 LGERA 401;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335DATES OF HEARING: 10/07/2002, 11/07/2002 DATE OF JUDGMENT:
07/19/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (Agent)
SOLICITORS
N/AFIRST RESPONDENT
SECOND RESPONDENT
Mr N C Hutley SC with Mr S J Brockwell (Barrister)
SOLICITORS
Baker & McKenzie
Ms A Pearman (Barrister)
SOLICITORS
National Parks and Wildlife Service
JUDGMENT:
IN THE LAND AND Matter No. 0301 of 2002
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 19 July 2002
Second Respondent
1. The background to this litigation and the present position in the proceedings can be gauged by reference to two judgments delivered by the Court in response to separate applications for interlocutory relief. The written judgments were delivered on 28 June 2002 and 17 July 2002.
2. In a notice of motion dated 8 July 2002 t he first respondent seeks an order that the applicant, Allan Carriage, provide security for the costs incurred by the first respondent in the event that the applicant is unsuccessful and an order for costs is made against him.
3. It is significant that two corporations have either been a party or the subject of a motion to be joined as a party and yet neither of them is now a party following a foreshadowed application seeking an order for security for costs. The remaining applicant is a natural person, a pensioner who, by admission, is without financial capacity to meet an order for costs. There can be no doubting the sincerity of Mr Carriage in his concern for what he believes is wanton destruction of relics of Aboriginal culture. He is an Aboriginal elder and has told the Court that he agreed to be the applicant in an attempt to bring unity to the indigenous community and in the interest of attempting to preserve important heritage relic items that he considers to be relevant to all sections of the Australian people and indeed the world. In the absence of evidence to the contrary, and particularly after having observed Mr Carriage in the witness box, the Court concludes that the applicant’s claim is bona fide. However, I have already decided that the claim has so little prospect of success the applicant is not entitled to interlocutory relief at this stage of the proceedings. Although the interest of Mr Carriage in the outcome of the proceedings may not be strictly personal to him in a legal sense, he does have a special interest in the subject matters as an individual Aboriginal person. Furthermore, although an order for security for costs that has the practical effect of barring the further conduct of the proceedings, will not deprive Mr Carriage of any direct personal right. Nevertheless, he appears as an Aboriginal elder making a claim on behalf of a community seeking to remedy an alleged wrong to that community.
4. Section 176A of the National Parks and Wildlife Act 1974 (“the NP&W Act”) provides that any person may bring proceedings in the Court for an order to remedy or restrain a breach of the NP&W Act. The relief which the applicant seeks may be described as an order to remedy a breach of the NP&W Act and to restrain a breach of the Act.
5. Section 69(3) of the Land and Environment Court Act (“the Court Act”) provides that the Court may order a party instituting proceedings in the Court to give security for payment of costs that may be awarded against that party. Section 69(4) and s 69(5) make provisions for the form and amount of security and variation of the time at which or the manner or form to which the security is to be given. If security is not given in accordance with an order, the Court may order that the proceedings be dismissed in accordance with s 69(6).
6. This is not the case where the alleged wrong committed or threatened by the respondent is incapable of remedy at the suit of any other applicant. Litigation under s 176A of the NP&W Act is no different to litigation under s 123(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The latter was considered by the Court of Appeal in Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32, unreported. The power to order security under s 69(3) of the Court Act is not to be narrowly construed, particularly as it applies to the “new species of litigation” referred to in Oshlack v Richmond River Council (1998) 193 CLR 72 at [45]. Melville also decides that s 69(3) of the Court Act must not be construed in a narrow way. As with the applicant in Melville the present applicant, Mr Carriage, will not be deprived of any fundamental right by permitting an order for security for costs. Anyone could have brought the proceedings. In that sense, an order for security will not necessarily prevent the merits of the controversy from being determined.
7. There is no evidence form the applicant that an order for security will bring the proceedings to an end. Curiously, the only evidence to that effect emerges from the cross-examination of the solicitor for the first respondent, Mr Wilcher, when he was asked about his expectation in that regard.
8. There is no evidence by the applicant, or on his behalf, that any appeal for funds to finance the litigation will fail. There has already been one corporation which has been a party to these proceedings and another corporation has been foreshadowed as a second applicant. There is no explanation of the reasons why these corporations have not proceeded with the litigation. There is no evidence that they would not be capable of providing security for the costs of the litigation. As already alluded to, this is not the class of case referred to by Heydon JA in Melville at p [131] where, in a different context of geographical proximity, he considered it to be relevant that the applicant is not the only person likely to suffer detriment. It should be noted in this respect that Stein JA took a different view at [24] and considered that the fact “orders of security against an impecunious natural person does not deprive such person of any fundamental right because there are other potential applicants who could bring the proceedings” to be irrelevant.
9. The applicant is impecunious. He has not shown that an order would stultify the proceedings except to the extent that he has no personal property to meet it. The applicant’s case is merely arguable and does not have a reasonable prospect of success. Although I have readily accepted the bona fide nature of the applicant’s claim, this does not mean that it discloses a reasonable chance of success. I have already found, for other purposes, that it does not. It does not have a reasonable prospect of success beyond being arguable (Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd and Others (1995) 56 FCR 189 at 197).
10. It is plainly wrong, as Steain JA said, and with whom Heydon JA agreed, in Melville , to equate an application for costs, after the conclusion of a full hearing and an application for security for costs, that must be dealt with when the ultimate outcome could not be known.
11. Young CJ in Equity, in his reasons in Melville , identifies the purpose of s 123 of the EP&A Act (s 176A of the NP&W Act) as to remove what had become an increasing technical restriction on standing. In Rowley v New South Wales Leather and Trading Co. Pty Ltd and Woollahra Municipal Council (1980) 46 LGRA 250, Cripps J, after dismissing the application of the principle applicable when the Attorney-General brings proceedings, said that the discretion whether to grant final relief is to be exercised by weighing up not only the public interest, but also the rights and interests of the parties “including matters of conduct, hardship and convenience” . Kirby P made similar observations in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 and Warringah Shire Council v Sedecvic (1987) 10 NSWLR 335. At p 340 in Sedevcic Kirby P made it clear that a court may be less likely to deny relief if the application for equitable relief is made by the Attorney-General or a council. These observations serve to place the proceedings in a proper context.
12. In Town Watch Incorporated v Grafton City Council and Westlawn Investment Company Ltd (1997) 93 LGERA 401 at 405 the Chief Judge of this Court appears to have accepted that, where proceedings are not shown to have been brought in the public interest, the mere fact the proceedings seek to remedy an alleged breach of a statute pursuant to an open standing provision is not of itself sufficient to refuse to grant security for costs although, nevertheless, the orders of the Court should be moulded to ensure the opportunity to remedy or restrain a breach is not unjustifiably impeded.
13. There is no issue that the motion seeking an order that the applicant give security for costs was made promptly. It was filed immediately following the joinder of the present applicant. An earlier, then extant, notice of motion seeking security from a previous applicant was withdrawn.
14. Having regard to the identified inherent weakness in the applicant’s case, there is a strong argument to support the making of an order requiring the applicant to give security for at least part of the costs of the future conduct of the proceedings. The impecuniosity of the applicant is not a decisive matter but is a matter the Court must take into account in the exercise of its discretion whether to make the order. Notwithstanding the concession made by Mr Wilcher in the witness box to the contrary and submissions made by Mr Oshlack, it has not been proved to a sufficient level to satisfy the Court, at this stage, that the applicant will not be able to proceed with further litigation if security is required. Mr Carriage is not the only person who has the same level of interest in the outcome of the proceedings. His evidence is that he represents an assemblage of interests. The first respondent has already incurred costs in the conduct of two contested hearings and has been successful on both occasions. It does not seek security for payment of the accrued costs. No order as to costs has been made to date.
15. The notice of motion seeks an order for security for costs in an amount of $85,000. The evidence of Mr Wilcher seeks to justify an estimate for total fees and disbursements at the figure of $71,600, excluding some minor disbursements and the prospect of senior council’s fees.
17. The final orders of the Court are as follows:-16. In the Court’s view, therefore, having regard to the whole of the circumstances, the present applicant should, at this stage of the proceedings, provide some security for costs to be incurred by the first respondent. The order will be for an amount which the Court accepts as presently reasonable and will ensure payment of at least a significant proportion of the party and party costs. This amount is the sum of $25,000.
(1) That, within 14 days of the order, the applicant provide security for costs to the first respondent in respect of the costs from the date of this order up to and including the conclusion of the hearing of the matter in the amount of $25,000.
(3) Costs reserved.(2) That the proceedings be stayed until security for costs has been provided.
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