Legal Research
Cases
Gray v Macquarie Generation (No 2)

Gray v Macquarie Generation (No 2)

Case [2010] NSWLEC 82 28 May 2010

Jurisdiction

Public Interest Litigation

Novel Issues

Public Law Obligations

Costs

Environmental Law

Administrative Law

No judgment structure available for this case.

Type to search within this case.

Land and Environment Court

of New South Wales

CITATION: Gray and Anor v Macquarie Generation (No 2) [2010] NSWLEC 82

PARTIES: FIRST APPLICANT
Peter Robert Gray
SECOND APPLICANT
Naomi Crystal Hodgson
RESPONDENT
Macquarie Generation

FILE NUMBER(S): 40500 of 2009

CORAM: Pain J

KEY ISSUES: COSTS :- whether departure from usual costs rule justified - partially successful strike out application - whether litigation can be characterised as public interest litigation - whether there are any countervailing considerations

LEGISLATION CITED: Civil Procedure Act 2005 s 98
Land and Environment Court Rules 2007 r 4.2(1), r 4.2(2)
Protection of the Environment Operations Act 1997
Uniform Civil Procedure Rules 2005 r 42.1

CASES CITED: Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) [2010] NSWLEC 59
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gray and Anor v Macquarie Generation [2010] NSWLEC 34
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Save the Ridge Inc v Commonwealth of Australia [2006] FCAFC 51; (2006) 230 ALR 411
Sharples v Minister for Local Government [2010] NSWCA 36
Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108

DATES OF HEARING: 24 May 2010

DATE OF JUDGMENT:
28 May 2010

LEGAL REPRESENTATIVES: APPLICANTS
Ms K Ruddock (solicitor)
SOLICITOR
Environmental Defenders Office
RESPONDENT
Mr R Lancaster SC
SOLICITOR
Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 May 2010

40500 of 2009 Gray and Anor v Macquarie Generation (No 2)
JUDGMENT

1 Her Honour: In Gray and Anor v Macquarie Generation [2010] NSWLEC 34 (Gray No 1) I made an order summarily dismissing part of the Applicants’ amended points of claim (APOC) on the question of whether there was lawful authority to emit carbon dioxide from the Bayswater power station in the Hunter Valley under an environmental protection licence issued pursuant to the Protection of the Environment Operations Act 1997 (the POEO Act). I did not dismiss another part of the Applicants’ APOC which raised an alternative ground that if the Respondent had lawful authority to emit carbon dioxide under its licence that did not authorise the emission of carbon dioxide without reasonable regard for people and the environment which limitation is to be implied in the licence (cl 54A and cl 54B of the APOC). The relevant factual background for the determination of the issues was contained in the agreed facts set out at [6] of Gray No 1.

2 The Respondent seeks an order that its costs be paid by the Applicants as it argues it was largely successful in its Notice of Motion dated 11 September 2009 (the event) and the usual costs order made is that costs follow the event. The Applicants argue that each party should pay its own costs on the basis that the…

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.

Continue reading Gray v Macquarie Generation (No 2)

Details

AGLC: Gray v Macquarie Generation (No 2) [2010] NSWLEC 82
Case: [2010] NSWLEC 82
Decision Date: 28 May 2010

CaseChat Overview and Summary

In Gray and Anor v Macquarie Generation (No 2), the Land and Environment Court of New South Wales was tasked with determining the costs associated with a motion brought by Macquarie Generation, the respondent, in a case initiated by Peter Robert Gray and Naomi Crystal Hodgson, the applicants. The primary legal issues centred on whether the departure from the usual rule of costs in litigation was justified, particularly given the nature of the case as potentially public interest litigation, and whether there were any countervailing considerations that would affect the standard cost orders.

The applicants argued that the litigation was in the public interest, particularly given the broad concerns about climate change and the role of coal-fired power stations in contributing to it. They contended that their motivations were aligned with upholding public law obligations and the rule of law, without any personal financial gain. Conversely, the respondent argued that the litigation did not qualify as public interest litigation because it did not raise novel issues of general importance nor did it contribute materially to the understanding or administration of the law.

The court, Pain J, examined the nature of public interest litigation and the criteria for such characterisation. After a detailed analysis, the court found that while the litigation did raise novel issues and had broader implications concerning environmental protection and climate change, it was not sufficiently novel or impactful to warrant a departure from the usual costs rule. However, given the public interest nature of the litigation and the partial success of the applicants, the court ruled that each party should bear its own costs for the respondent's motion.

The final order of the court was that each party should pay their own costs in relation to the respondent's Notice of Motion dated 11 September 2009.

Orders