Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 3)

[2014] NSWLEC 90

Land and Environment Court

New South Wales

Medium Neutral Citation:

Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 3) [2014] NSWLEC 90

Hearing dates:

On written submissions

Decision date:

01 July 2014

Jurisdiction:

Class 4

Before:

Craig J

Decision:

1. The First and Second Respondents must pay the Applicant's costs

2. The Fourth Respondent must bear its own costs.

3. No order for costs is made against the Third Respondent.

Catchwords:

COSTS - successful applicant entitled to an order against active respondents - terms of orders agreed

Legislation Cited:

Civil Procedure Act 2005
Environmental Planning and Assessment Regulation 2000
Uniform Civil Procedure Rules 2005

Cases Cited:

Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Construction, Forestry, Mining and Energy Union v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174
Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71

Category:

Costs

Parties:

Darkinjung Local Aboriginal Land Council (Applicant)
Wyong Coal Pty Ltd trading as Wyong Areas Coal Joint Venture (First respondent)
Minister for Planning and Infrastructure (Second respondent)
Planning Assessment Commission NSW (Third respondent)
New South Wales Aboriginal Land Council (Fourth respondent)

Representation:

J Kirk SC with P D Herzfeld (Applicant)
Z Heger (First respondent)
A Shearer (Second respondent)
Submitting appearance (Third respondent)
G Kennett SC (Fourth respondent)
Chalk & Fitzgerald (Applicant)
Ashurst (First respondent)
New South Wales Planning and Infrastructure (Second respondent)
Submitting appearance (Third respondent)
New South Wales Aboriginal Land Council (Fourth respondent)

File Number(s):

40189 of 2014

Judgment

1. On 12 June 2014 I delivered judgment in these proceedings, substantially upholding the construction of cl 49 of the Environmental Planning and Assessment Regulation 2000 for which Darkinjung contended (Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71). At the conclusion of argument before me, Darkinjung had stated that it sought an order for its costs of the proceedings should it be successful (s 98(1) Civil Procedure Act 2005; r 42.1 Uniform Civil Procedure Rules 2005).

1. When delivering my reserved judgment, I gave directions for the filing of written submissions by the parties in relation to costs. Those submissions have now been received. No party has sought a hearing to address those submissions.

1. Wyong Areas Coal Joint Venture (WACJV) submits that it, together with the Minister for Planning and Infrastructure (the Minister), as the unsuccessful active opponents of Darkinjung's claim, should together be ordered to pay Darkinjung's costs (Brown v Randwick City Council (No 2) [2012] NSWLEC 28 at [25]). WACJV also submits that no order for costs should be made in favour of the State Land Council (the Fourth Respondent). The latter was in the same interest as Darkinjung for the purpose of the proceedings and although differently expressed, essentially it embraced Darkinjung's submissions. The position of the State Land Council was, so it is submitted, akin to that of an intervener in proceedings, with the consequence that it should neither recover costs nor be subject to a costs order (Construction, Forestry, Mining and Energy Union v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174 at [14]).

1. The State Land Council accepts WACJV's submissions in this regard. It does not seek an order for costs against any party and accepts that it should bear its own costs.

1. The Minister, as Second Respondent, accepts as appropriate the submissions made by WACJV. She also submits that as the Planning Assessment Commission (the PAC) (the Third Respondent) filed a submitting appearance, it should not be required to pay any costs. Neither Darkinjung nor the State Land Council has sought an order against the PAC.

1. Darkinjung accepts the submissions of WACJV. As a consequence, the parties are in agreement as to the orders for costs that should be made. Accordingly, I make the following orders:

(1)   The First and Second Respondents must pay the Applicant's costs.

(2)   The Fourth Respondent must bear its own costs.

(3)   No order for costs is made against the Third Respondent.

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Decision last updated: 02 July 2014