Carriage v Stockland (Constructors) Pty Ltd [No 5] - [2003] NSWLEC 197

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland (Constructors) Pty Ltd and Ors [No 5] [2003] NSWLEC 197

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

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES:
Costs :- whether security for costs should be awarded - impecunious litigant - application brought under open standing provisions - special interest of applicant - exercise of discretion
Injunctions and declarations :- whether interlocutory injunction should be discharged
Practice and procedure :- whether proceedings should be dismissed for want of prosecution - whether leave should be granted to amend pleadings

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123
Land and Environment Court Act 1979 s 69
Land and Environment Court Rules 1996 Pt 12 r 2
National Parks and Wildlife Act 1974 s 90

CASES CITED: Brown v Environment Protection Authority (NSWCA, unreported, 1 April 1993, Priestley JA);
Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216;
Carriage v Stockland Constructors Pty Limited and Anor (No2) [2002] NSWLEC 121;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 2] [2002] NSWLEC 217; (2002) 123 LGERA 214;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 3] [2003] NSWLEC 86;
Carriage v Stockland (Constructors) Pty Ltd and Ors [No 4] [2003] NSWLEC 129;
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189;
Melville v Craig Nowlan & Associates Pty Limited (2001) 54 NSWLR 82;
Onus v Alcoa of Australia Limited (1982) 149 CLR 27;
The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146

DATES OF HEARING: 20/06/2003

DATE OF JUDGMENT:
06/24/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Norton (barrister)
SOLICITORS
Susan Hill
FIRST RESPONDENT
Mr T Hale SC
SOLICITORS
Baker & McKenzie
SECOND RESPONDENT
Ms A Pearman (barrister)
SOLICITORS
National Parks and Wildlife Services
THIRD RESPONDENT
submitting appearance

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40863 of 2002

Pain J

24 June 2003

ALLAN CARRIAGE

Applicant

STOCKLAND (CONSTRUCTORS) PTY LIMITED

DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE

SERVICE OF NEW SOUTH WALES

Second Respondent

THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION

Third Respondent

Judgment

Introduction

1. The Applicant has filed a notice of motion seeking to further amend his pleadings in this matter. The First Respondent has filed a notice of motion which seeks several orders:

1. An order that these Class 4 proceedings be dismissed for want of prosecution.

2. An order that the injunction on the First Respondent pursuant to Order 2 made by this Court on 20 November 2002 be lifted, that is an injunction over the AIR land.

3. An order that the Applicant pay the First Respondent’s costs in these proceedings to the date of dismissal of the proceedings.

4. Alternatively an order is sought that the Applicant provide security for costs to the First Respondent in the sum of $98,700.

5.…

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: [2003] NSWLEC 197
Decision Date: 06/24/2003

CaseChat Overview and Summary

In Carriage v Stockland (Constructors) Pty Ltd [No 5], the Land and Environment Court of New South Wales considered several applications brought by Stockland (Constructors) Pty Ltd against Allan Carriage. The key issues were whether security for costs should be awarded, whether the proceedings should be dismissed for want of prosecution, and whether leave should be granted to amend the pleadings. Stockland argued that the proceedings were otiose and that the Applicant's case had poor prospects of success. The Applicant, on the other hand, submitted that the case was not otiose and that the First Respondent would not suffer any particular hardship if security for costs were not awarded.

The court found that the Applicant's case was not otiose and that there was no basis to award security for costs. The court held that the Applicant had a special interest in the proceedings, as he had personally been denied procedural fairness. The court also found that the conditions precedent to dismissing the proceedings for want of prosecution had not been satisfied. Finally, the court granted leave to amend the pleadings, subject to notice being given to the proposed new Third Respondent and clarification of the position in relation to the existing Third Respondent.

The court dismissed the First Respondent's application for security for costs, refusal to dismiss the proceedings for want of prosecution, and discharge of the interlocutory injunction. The application to amend the pleadings was stood over pending resolution of the situation with the proposed Third Respondent.

Orders