Dobbie v Water Administration Ministerial Corporation

[2003] NSWLEC 418

>

Land and Environment Court

of New South Wales

CITATION:	Dobbie v Water Administration Ministerial Corporation [2003] NSWLEC 418
PARTIES:	APPLICANT John William Dobbie RESPONDENT Water Administration Ministerial Corporation
FILE NUMBER(S):	40238; 10230 of 2003
CORAM:	Pain J
KEY ISSUES:	Costs :- Class 4 proceedings - costs follow the event
LEGISLATION CITED:	Land and Environment Court Act s 69
CASES CITED:	Gee v Port Stephens Council [2003] NSWLEC 60 (17 October 2003); Latoudis v Casey (1990) 170 CLR 535 ; Oshlack v Richmond River Council (1998) 193 CLR 72
DATES OF HEARING:	27/10/03
EX TEMPORE JUDGMENT DATE :	10/29/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson SOLICITOR Susan Hill RESPONDENT Mr Howard (solicitor) SOLICITOR Department of Infrastructure Planning and Natural Resources

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40238 of 2003
10230 of 2003

Pain J

29 October 2003
JOHN WILLIAM DOBBIE
Applicant
v
WATER ADMINISTRATION MINISTERIAL CORPORATION
Respondent
Judgment


1. I will now make my decision on costs. Given that I am dismissing a Class 4 application which raised a number of points of law that were also common to the related Class 1 proceedings (matter no 10230 of 2003), I should note that it was appropriate that the Applicant did commence Class 4 proceedings because it was seeking declaratory relief which simply is not available in Class 1 proceedings.

2. Miss Hill for the Applicant urged me to view this as a mixed Class 1 and Class 4 matter. I do not accept that characterisation. Essentially I dealt with a Class 4 matter and that is the matter which I am dismissing today.

3. Latoudis v Casey (1990) 170 CLR 535 is authority for the proposition that costs awards are not punitive but rather compensatory. I adopt the submissions of Mr Howard that, under s 69 of the Land and Environment Court Act 1979, the Court does have a broad discretion as to costs. In Oshlack v Richmond River Council (1998) 193 CLR 72, it was emphasised by the High Court that there should not be an automatic application of that discretion in favour of a successful defendant. In the situation here, where the Applicant has been unsuccessful and I have dismissed the application and the Class 4 proceedings are at an end, it seems to me it is appropriate that I award costs in favour of the Respondent.

Orders

4. The Court makes the following orders:
1. The Applicant is to pay the Respondent’s costs in relation to matter no 40238 of 2003.
2. No order as to costs is made in relation to the preliminary question of law raised in matter no 10230 of 2003.