Donnelly and Anor v Ross Mining NL and Ors No. 2 (costs)
[2002] NSWLEC 116
•06/04/2002
Land and Environment Court
of New South Wales
CITATION: Donnelly and Anor v Ross Mining NL and Ors No. 2 (costs) [2002] NSWLEC 116 PARTIES: APPLICANTS
RESPONDENTS
Donnelly and Anor
Ross Mining NL and OrsFILE NUMBER(S): 40164 of 1998 CORAM: Cowdroy J KEY ISSUES: Costs :- LEGISLATION CITED: Land and Environment Court Act 1979, s 69 CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 DATES OF HEARING: 04/06/2002 EX TEMPORE
JUDGMENT DATE :
06/04/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr Oshlack (Agent)SOLICITORS
NARESPONDENT
Mr S Stanton (Barrister)SOLICITORS
Phillips Fox
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40164/98
CORAM: Cowdroy J
DECISION DATE: 4/06/2002
1. By notice of motion dated 20 September 2001 the respondents seek an order that their costs of these proceedings be paid by the applicants.
2. On 23 August 2001 the Court delivered judgment in which it dismissed the charges of contempt of Court brought by the applicants against the first and second respondents. Accordingly the respondents submit that in accordance with the established principles they are entitled to an order that their costs of the proceedings be paid by the applicants.
3. In Oshlack v Richmond River Council (1998) 193 CLR 72 the High Court of Australia established that prima facie a successful party was entitled to an order to compensate it for its costs. An award of costs is not punitive but rather compensatory. In summary the respondents submit that they are entitled to an order of costs to compensate them for the expenses incurred in successfully defending the charges. By virtue of s 69 of the Land and Environment Court Act 1979 this Court has a wide discretion as to costs.
4. In support of its application an affidavit of Jennifer Margaret Hughes sworn 1 November 2001 provides details of conversations held with Mr Oshlack who represented the applicants. The affidavit contains material which suggests that the proceedings from the outset were doomed to failure, that the proceedings were a triviality, that the proceedings were instituted for an ulterior motive namely, to harm or cause obstruction to the respondents in their operations on the Timbarra Plateau. Certain conversations referred to in the affidavit suggest that the proceedings had been instituted by the applicants for the sole objective of preserving the plateau from development.
5. In addition the respondents point to the conduct of the case. They submit that the applicants were ill prepared and did not know precisely the case that was really sought to be agitated against the respondents. Lastly the respondents rely upon the fact that the applicants were seeking an order that the payment of any fine be made to themselves.
6. The applicants resist the application and submit that prima facie Aboriginal relics had been unlawfully destroyed. It is acknowledged that the trees the subject of the proceedings had never been declared Aboriginal relics. A notification had been made to the National Parks and Wildlife Service which began investigations to determine whether the trees were in fact relics. The applicants also raise numerous matters as set out in the written submissions to justify a finding that the Court should make no order as to costs.
7. If the Court were required to consider solely the question of the successful party’s interests, then it is quite clear that an order for costs should be made. But it is necessary in this case to consider the background to the application in order to determine whether such an order is justified.
8. The issue of the three scar trees had arisen prior to May 1998. There had been investigations carried out by Ms Davies who considered that such trees were scar trees. She provided such notification to the National Parks and Wildlife Service. Mr John Appleton, an archaeologist, attended the site in May 1998 and the three trees in contention were flagged. In June 1998 a report known as the Long Report was received by Mr Oshlack which placed in doubt the claim that the trees were Aboriginal relics. It concluded that marks on the trunks of such trees had been made by European settlement.
9. As at June 1998 no final determination had been made to resolve or further investigate the authenticity of the claim that the trees were Aboriginal relics. Between June 1998 and August 1998 two of the three trees had been cut down and were burnt. A third tree had been cut down and was destroyed in a bush fire which occurred on Sunday 4 October 1998.
10. The undertakings which were the subject of the contempt proceedings were given to the Court on 3 September 1998, by which date two of the three trees had already been destroyed.
11. The cutting down of the trees by the respondents was undertaken on the instructions of Mr Mark Bernard Nolan following advice from Mr Matthew Orr, the Environmental Coordinator of the respondents, that it was in order to do so. Mr Orr was acting upon the content of Mr Appleton’s report. Such actions in circumstances when there was known and unresolved contention concerning their authenticity as relics, was an act of stupidity. There was no consultation with the applicants, no doubt because of the fact that the parties were completely polarised. The ill-feeling between the parties is obvious from the evidence as appears from Miss Hughes affidavit and particularly in the conversation with Mr Oshlack, which took place on 20 September 2000.
12. In the absence of consultation between the parties in removing the trees the respondents took upon themselves a grave risk that there could be a challenge to their conduct. It may have been expedient for them to do so in order to facilitate their operations. Nevertheless it was a course which was fraught with the potential to cause further difficulty. It would have been far more prudent either for the trees to have remained on site pending determination and resolution of their status or alternatively to have at least notified the applicants of their proposed course.
13. Subsequently Mr Oshlack became aware that the trees had apparently been cut down as appears from various propositions which he put to Miss Hughes on 7 December 2000. However, no information was available to the applicants concerning the fate of the subject trees.
14. When this matter became before the Court on 3 September 1998, Mr Ireland who appeared for the respondents was specifically asked by Bignold J whether there was any suggestion that the relics, namely the trees had been interfered with. The transcript of that occasion does not accurately record the answer, as was made known to Mr Oshlack in the conversation of 7 December 2000 with Miss Hughes. However Mr Oshlack did not have access to the tapes from which he could verify that the transcript was in fact incorrect.
15. Mr Ireland was provided with instructions on 3 September by the respondent which did not reveal the true position. Mr Ireland was not informed by the respondents that the two of the three trees had already been destroyed and that the third had been cut down, that tree later being destroyed in a bush fire. Mr Ireland informed the Court that the order would operate prospectively and he was at pains to ensure that his client could not be found guilty of any breach of the order which was made on that day.
16. Against these background facts the Court must weigh up whether the institution of the proceedings was unjustified. Bearing in mind the events namely, the cutting down of the trees and the information provided to the Court on 3 September, there was sufficient ground for the applicants to genuinely hold the belief that the orders of the Court had been deliberately disobeyed. They had no way of independently checking the facts. There was no co-operation between the parties which might have indicated the true position. Had that course been taken and had the respondents made known the events surrounding the destruction of the trees, these proceedings might never have been instituted.
17. The Court is mindful of the submissions made by the respondents that the proceedings were unduly prolonged and were ill prepared. That is certainly the case, but the applicants were not legally represented which is a factor the Court takes into consideration.
18. Having considered all of these facts the Court concludes that this is a case in which, although the respondents have been successful, the surrounding circumstances are such that no order for costs should be made. Accordingly the notice of motion dated 20 September 2001 is dismissed.
Orders
19. The Court orders that the respondents’ application for costs be dismissed.
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