Carriage v Stockland (Constructors) Pty Ltd (Costs) - [2002] NSWLEC 218

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland (Constructors) Pty Ltd and Another (Costs) [2002] NSWLEC 218

PARTIES:
APPLICANT
Allan Carriage
FIRST RESPONDENT
Stockland (Constructors) Pty Ltd
SECOND RESPONDENT
Director-General of National Parks and Wildlife Service

FILE NUMBER(S): (4)0301 of 2002

CORAM: Talbot J

KEY ISSUES: Costs :- interlocutory proceedings - whether public interest litigation

LEGISLATION CITED: Land and Environment Court Act 1979 s 69
National Parks and Wildlife Act 1974 s 90

CASES CITED: Carriage v Stockland (Constructors) Pty Ltd and Another [2002] NSWLEC 117, unreported;
Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No. 2) [2002] NSWLEC 127, unreported;
Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105, unreported);
Oshlack v Richmond River Shire Council (1998) 193 CLR 72

DATES OF HEARING: 01/11/2002

DATE OF JUDGMENT:
11/22/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (Agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr S J Brockwell (Barrister)
SOLICITORS
Baker & McKenzie
SECOND RESPONDENT
Ms A Pearman (Barrister)
SOLICITORS
National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(4)0301 of 2002

Talbot J

22 November 2002

Allan Carriage

Applicant

Stockland (Constructors) Pty Ltd

First Respondent

Director-General of National Parks and Wildlife Service

Second Respondent

Judgment

Introduction

1 On 27 June 2002 Wadi Wadi Coomaditchie Aboriginal Corporation (“Wadi Wadi”) made an application for interlocutory relief to restrain Stockland (Constructors) Pty Ltd (“the company”) from engaging in any form of excavation or earth moving at Sandon Point, north of Wollongong (“the site”) and that the company be restrained from removing any of the soil in the stockpile of earth taken from the site until certain investigations in relation to relics had been undertaken.

2 The application for interlocutory relief was dismissed and written reasons for the judgment were published by myself on 28 June 2002. At par 16 and par 17 of the judgment I made the following observations (see Wadi Wadi Coomaditchi Aboriginal Corporation v Stockland (Constructors) Pty Ltd [2002] NSWLEC 105, unreported):-

16. In the circumstances I am not satisfied that there is a serious question to be tried. The applicant’s case is weak and I regard it as having no real prospect of success. The real issue appears to be a dissatisfaction with the terms of the consent and the practicalities with the operation of the conditions of the consent. These appear to be administrative issues. A practical measure would have been to raise the issues with the NPWS. This has not been done. Moreover, the issues became apparent more than a month ago and no steps were taken by the applicant to seek relief in this Court until this week.

17. No breach of the s 90 consent has been identified. It is not readily apparent that the s 90 consent does not authorise the destruction of the relics.

3 Subsequently, at a further interlocutory hearing on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 218
Decision Date: 11/22/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case involving Allan Carriage as the applicant, Stockland (Constructors) Pty Ltd as the first respondent, and the Director-General of National Parks and Wildlife Service as the second respondent. The primary dispute centered around the costs incurred during interlocutory proceedings, particularly whether these proceedings should be categorized as public interest litigation. This categorization would influence the discretion exercised by the Court in determining the payment of costs between the parties involved.

The central legal issue before the Court was whether the nature of the litigation warranted a departure from the usual practice of awarding costs to the successful party. Specifically, the Court had to decide if the litigation involved significant public interest issues that could justify such a departure. The Court considered the arguments from both parties, with the first respondent asserting that the litigation did not involve significant public interest issues and thus should not deviate from the ordinary practice of awarding costs.

The Court analyzed the case by comparing it to previous judgments, notably Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No. 2) [2002] NSWLEC 127, unreported, and Oshlack v Richmond River Shire Council (1998) 193 CLR 72. The Court concluded that while the applicants had a genuine concern for the protection of Aboriginal artefacts and relics, the litigation did not raise significant issues concerning the interpretation and administration of the statutory provisions under the National Parks and Wildlife Act 1974. Therefore, the Court found no sufficient special circumstances to depart from the usual rule of awarding costs to the successful party.

Given the Court's findings, it ruled that Wadi Wadi Coomaditchie Aboriginal Corporation should pay the costs incurred by the first respondent up to 8 July 2002. From 8 July 2002 onwards, Allan Carriage was ordered to pay the first respondent's costs, excluding those related to specific hearings. This decision was based on the Court's assessment that the litigation did not sufficiently involve public interest issues to justify a deviation from the ordinary practice of awarding costs.

Orders