Carriage v Stockland (Constructors) Pty Ltd (No 2) - [2002] NSWLEC 217

Reported Decision: 123 LGERA 214

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217

PARTIES:
APPLICANT
Allan Carriage
RESPONDENTS
Stockland (Constructors) Pty Ltd and Ors

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Costs :- security for costs - Aboriginal elder brought proceedings to protect Aboriginal relics and cultural heritage - impecunious applicant - likely that proceedings would be brought to an end if security for costs granted - interlocutory relief granted in part

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123
Land and Environment Court Act 1979 s 69(3), s 69(6)
National Parks and Wildlife Act 1974 s 176A

CASES CITED: Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121;
Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) ACSR 405;
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189;
Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32;
Town Watch Incorporated v Grafton City Council and Anor (1997) 93 LGERA 401

DATES OF HEARING: 18/11/2002

DATE OF JUDGMENT:
11/20/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr T Hale SC
with Mr S Brockwell (barrister)
SOLICITORS
Baker & McKenzie
SECOND RESPONDENT
Mr J Whyte (barrister)
SOLICITORS
National Parks and Wildlife Services
(submitting appearance at hearing)
THIRD RESPONDENT
submitting appearance save as to costs filed
FOURTH RESPONDENT
Mr A Gemmell (barrister)
SOLICITORS
Peedoms
(submitting appearance at hearing)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40863 of 2002

Pain J

20 November 2002

ALLAN CARRIAGE

Applicant

STOCKLAND (CONSTRUCTORS) PTY LTD

First Respondent

DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE OF NEW SOUTH WALES

THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION

WOLLONGONG CITY COUNCIL

Security for Costs Judgment

1 This judgment concerns a security for costs application by the First Respondent in Class 4 proceedings commenced by the Applicant who seeks various orders in relation to work being carried out on the First Respondent's land at Sandon Point. Consent for a major subdivision on that land was granted by this Court in Class 1 proceedings on 8 October 2001 (matters no.10026 - 10030 of 2001). The First Respondent’s Notice of Motion seeking security for costs together with the Applicant’s Notice of Motion seeking urgent interlocutory orders were heard on 18 November 2002. I have handed down a separate judgment today in relation to the Applicant's Notice of Motion seeking interlocutory orders in which interlocutory relief was partially granted.

2 In these proceedings the Applicant has, amongst other matters, taken action pursuant to s 176A of the National Parks and Wildlife Act 1974 (NPW Act) alleging that there have been breaches of the permit granted by the National Parks and Wildlife Service (NPWS) in relation to works related to stages 2 to 6 of the Sandon…

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 217
Decision Date: 11/20/2002

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Allan Carriage, an Aboriginal elder, sought to protect Aboriginal relics and cultural heritage on land at Sandon Point, Wollongong. Stockland (Constructors) Pty Ltd, the first respondent, applied for security for costs in these Class 4 proceedings, which followed consent for a major subdivision granted by this Court in Class 1 proceedings on 8 October 2001. The key legal issues before the Court were whether security for costs should be awarded under s 69(3) of the Land and Environment Court Act 1979, and if so, in what amount, and whether such an order would effectively prevent the proceedings from continuing.

The Court considered the broad discretion it has in awarding security for costs, and the relevant factors it should take into account, such as the strength and bona fides of the applicant’s case, the applicant’s impecuniosity, and whether the application for security is oppressive. The Court also noted that Mr Carriage, as an impecunious applicant, might be deprived of a fundamental right if an order for security for costs was made. While the Court acknowledged that other litigants might bring proceedings in the public interest, it considered that there may not be a pool of potential litigants willing to come before the courts to remedy breaches of public law. Given the impecuniosity of Mr Carriage and the potential for the proceedings to be brought to an end if security for costs was granted, the Court decided not to award security for costs at that stage of the proceedings.

The Court dismissed the First Respondent’s Notice of Motion seeking security for costs and reserved the question of costs. The exhibits were ordered to be returned.

Orders