Fitzpatrick Investments Pty Limited v The Director-General of the Department of Environment and Conservation [No 2]

[2005] NSWLEC 297

Land and Environment Court

of New South Wales

CITATION:	Fitzpatrick Investments Pty Limited v The Director-General of the Department of Environment and Conservation [No 2] [2005] NSWLEC 297
PARTIES:	APPLICANT: Fitzpatrick Investments Pty Limited RESPONDENT: The Director-General of the Department of Environment and Conservation
FILE NUMBER(S):	11358 of 2004
CORAM:	Pain J
KEY ISSUES:	Costs :- class 1 proceedings - whether costs should be awarded to the Respondent pursuant to Land and Environment Court Act 1979 s 69 when Land and Environment Court Rules 1996 Pt 16 r 4 not applicable
LEGISLATION CITED:	Land and Environment Court Act 1979 s 69 Land and Environment Court Rules 1996 Pt 16 r 4 Threatened Species Conservation Act 1995 s 91, s 106
CASES CITED:	Fitzpatrick Investments Pty Limited v The Director-General of the Department of Environment and Conservation [2005] NSWLEC 271; Latoudis v Casey (1990) 170 CLR 534
DATES OF HEARING:	12/05/2005
EX TEMPORE JUDGMENT DATE:	05/12/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Beasley (barrister) SOLICITORS: Minter Ellison RESPONDENT: Ms M England (solicitor) SOLICITORS: State Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

12 May 2005

11358 of 2004 Fitzpatrick Pty Limited v Director-General of the Department of Environment and Conservation [No 2]

EX TEMPORE JUDGMENT

1 Her Honour: Before me this morning I have heard arguments in a costs application made by the Respondent in relation to a Notice to Produce filed by the Applicant on 16 December 2004. The Respondent submitted that they should be entitled to costs for the Notice to Produce. The Applicant submitted that there should be no order as to costs.

2 These proceedings concern a Class 1 application relating to the refusal of an application by the Respondent for a license to harm or pick threatened species, populations or ecological communities made under s 91 of the Threatened Species Conservation Act 1995. The Applicant filed a Notice to Produce on 16 December 2004 seeking documents in relation to the proceedings. On 9 March 2005, I delivered an ex tempore judgment in Fitzpatrick Investment Pty Limited v The Director-General of the Department of Environment and Conservation [2005] NSWLEC 271 and gave a preliminary determination in relation to the Notice to Produce. Subsequent to my judgment, the parties resolved the matter in relation to the Notice to Produce.

3 I am advised that the Notice to Produce has had several return dates before this Court. I have heard argument that it was before the Court on 27 January 2005 and subsequently on 15 February 2005. Consent orders were made on 27 January 2005, as referred to in Mr Andrew Duggan’s affidavit dated 25 February 2005, to the effect that certain documents should be produced including documents referred to as category 1B documents in the Notice to Produce.

4 Essentially the key issue between the parties related to a claim for public interest immunity by the Respondent, represented by the Crown Solicitor’s Office. Through much correspondence, to which I have been taken and which has been tendered as exhibits to Mr Duggan’s affidavit, the Applicant had on numerous occasions attempted to obtain particulars in relation to that public interest immunity claim. Finally these requests resulted on 4 March 2005, only a few days before the hearing before me on 9 March 2005, in the Applicant being advised that the key paragraph in the Notice to Produce was in fact category 1B.

5 I note that in the correspondence it is clear that there were several unsuccessful attempts by the Applicant to obtain particulars. I accept the submissions from the Applicant that it was not until the affidavit of Mr Woodward dated 8 March 2005, only one day before the hearing on 9 March 2005, that that public interest immunity claim was adequately articulated. While correspondence from the Respondent’s solicitors to the Applicant’s solicitors on 4 March 2005 provides a list of documents over which the privilege is claimed, it does not provide any particulars in relation to the basis for that claim.

6 I also note that in my decision of Fitzpatrick Investments Pty Limited v Director-General of the Department of Environment and Conservation [2005] NSWLEC 271 at [5] – [8], set out in summary form in the letter from the Respondent’s solicitors to the Applicant’s solicitors dated 28 April 2005, it is clear that in my reasons I did not deal at all with the public interest immunity claim. Rather I held that in the context of these Class 1 proceedings there was no legitimate forensic purpose in relation to the documents sought by the Applicant. That was largely the reason why the Notice to Produce application failed before me and I have not dealt with the public interest immunity claim at all.

7 The parties essentially agree that Pt 16 r 4 of the Land and Environment Court Rules1996 (“the Rules”), which generally applies in Class 1 proceedings, does not apply in this case. This is because Pt 16 r 4 of the Rules does not apply to proceedings brought under s 106 of the Threatened Species Conservation Act 1995. It therefore follows that s 69 of the Land and Environment Court Act 1979 (“the Court Act”) applies and I have a broad discretion to award costs in matters such as this before me. Under the Court Act I must exercise the discretion judicially. I have also been referred to the often quoted case of Latoudis v Casey (1990) 170 CLR 534 which emphasises that the award for costs is not punitive but intended to be compensatory.

8 Taking into account all the facts that I have been presented with I consider that I should make a limited costs order in favour of the Respondent. The Applicant’s counsel, Mr Beasley, submitted that there should be no order as to costs. However, the fact is that the Applicant was unsuccessful, although maybe not for the reasons it had expected, at the hearing before me on 9 March 2005.

9 I order that the Applicant pay the Respondent’s costs of the proceedings on 8 and 9 March 2005.