Gray v Minister for Planning (No 2)

[2007] NSWLEC 91

Land and Environment Court

of New South Wales

CITATION:	Gray v Minister for Planning & Ors (No 2) [2007] NSWLEC 91
PARTIES:	APPLICANT Peter Gray FIRST RESPONDENT Minister for Planning SECOND RESPONDENT Director-Genral of the Department of Planning THIRD RESPONDENT Centennial Hunter Pty Ltd
FILE NUMBER(S):	40870 of 2006
CORAM:	Pain J
KEY ISSUES:	Costs :- exercise of discretion to award costs in contested Class 4 proceedings
LEGISLATION CITED:	Land and Environment Court Act 1979 s 69(2)
CASES CITED:	Armstrong v Landmark Corporation Ltd [1967] 1 NSWR 13; Cutcliffe v Lithgow City Council [2006] NSWLEC 463; GPT Re Ltd v Wollongong City Council [2006] NSWLEC 658; Farah v Warringah Council and Ors [2006] NSWLEC 544; Gray v The Minister for Planning and Ors [2006] NSWLEC 720; Oshlack v Richmond River Council (1998) 193 CLR 72 ; Rosniak v Government Insurance Office (1997) 41 NSWLR 608; Waters v PC Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported)
DATES OF HEARING:	22 February 2007
DATE OF JUDGMENT:	27 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr N Perram SC Mr A Crossland SOLICITORS Woolf and Associates FIRST RESPONDENT No appearance SECOND RESPONDENT Mr J Kirk SOLICITORS Department of Planning, Legal Services Branch THIRD RESPONDENT Mr M Brennan (solicitor) SOLICITORS Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

27 February 2007

40870 of 2006 Gray v The Minister for Planning and Ors (No 2)

JUDGMENT ON COSTS

1 Her Honour: These are Class 4 proceedings in which I delivered judgment on 27 November 2006 in Gray v The Minister for Planning and Ors [2006] NSWLEC 720 and made a declaration:

That the view formed by the Director-General on 23 August 2006 that the environmental assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project adequately addressed the Director-General’s requirements is void and without effect.

but otherwise declined to make consequential orders to:
Set aside the decision of the Director-General of 23 August 2006 to place the Environmental Assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project on exhibition under s 75H(3) of the Environmental Planning and Assessment Act 1979.
Order that the Director-General reconsider whether the Environmental Assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project adequately addresses the Director-General’s requirements according to law.

2 I must now determine how costs should be awarded. The Applicant seeks all of his costs. The Second Respondent argued that there be no order as to costs or alternatively the order be limited to 50 per cent of the Applicant’s costs payable jointly and severally by the Second and Third Respondents. The First Respondent, the Minister, filed an early submitting appearance.

3 The Third Respondent argued the appropriate costs order is that there should be no order as to costs or alternatively that the Second and Third Respondents pay 50 per cent of the Applicant’s costs of the proceedings, in the respective ratio of 75 per cent and 25 per cent, in such amount as may be agreed or assessed other than costs:

(a) associated with the “four challenges” contained in the Applicant’s points of claim which were abandoned on 1 November 2006; and

(b) of a third counsel.

4 It is useful in order to understand the arguments to set out a chronology provided by the Third Respondent as follows:

23 August 2006	Director-General advises Centennial by letter that the EA is adequate for public exhibition	Judgment par 21
25 August to 6 October 2006	EA on public exhibition	Judgment par 23
19 September 2006	Applicant commences proceedings no 40870 of 2006
19 September 2006	Minister appoints a panel of experts under s 75G(1)(a)	Judgment par 25
20 September 2006	Applicant files his points of claim
16 October 2006	Director-General requires Centennial pursuant to s 75H(6)(a) to produce a response document to the issues raised in submissions	Judgment par 27
30 October 2006	Centennial lodges a response document which includes an assessment of GHG emissions resulting from the burning of coal	Judgment par 27
1 November 2006	Applicant files his outline of submissions and in so doing provides notice that of the “five challenges” contained in the points of claim, all have been abandoned other than the “first challenge	See par 11-12 of the Applicant’s outline of submissions and par 10 of Centennial’s written submissions
6 and 7 November 2006	Hearing of proceedings

5 It is agreed and was clear on the first day of the hearing that four of the grounds included in the points of claim were not pressed. These were abandoned in the Applicant’s counsel’s written submissions served late on 1 November 2006, two working days before the hearing dates of Monday 6 and Tuesday 7 November 2006.

Applicant’s submissions

6 The Applicant argued he was successful in the proceedings and obtained a declaration. The abandonment of numerous grounds before the hearing meant that there did not have to be any response in written submissions or at the hearing. While some preparation time was thrown away and defences to these grounds filed, this should not have been substantial. While the Applicant was not successful on both arguments raised on the challenge point there were overlapping arguments between the two. The case was highly expedited and was conducted responsibly. There is no evidence other than submissions from the bar table as to the extent of costs thrown away by the late abandonment of the four grounds of challenge.

7 Cases relied on were Armstrong v Landmark Corporation Ltd [1967] 1 NSWR 13 (Street J), and Rosniak v Government Insurance Office (1997) 41 NSWLR 608 (Mason P).

Second Respondent’s submissions

8 The Applicant, while obtaining a declaration, did not obtain any consequential orders. He was therefore unsuccessful on a key issue as the Court declined to exercise its discretion in favour of making an order for the reasons given at [150] of the judgment. These included taking into account that an independent review panel had been convened by the Minister and that the response document had been prepared by Centennial on 30 October 2006. It should have been apparent to the Applicant that the proceedings were futile on or shortly after 30 October when the response document was prepared by Centennial and should have discontinued at that point.

9 While the late abandonment of issues by the Applicant did not have much impact on the evidence filed it suggests these should not have been relied on in the first place. Points of Claim should be carefully considered and arguments should not be raised lightly. Much of the preparatory work had been done by the time the Applicant abandoned some of its arguments. Reliance was placed on GPT Re Ltd v Wollongong City Council [2006] NSWLEC 658, Farah v Warringah Council & Ors [2006] NSWLEC 544.

10 As to apportionment between the Second and Third Respondents, if a costs order is made the appropriate order is that both be jointly and severally liable. Both Respondents contested the challenge to an equal extent.

Third Respondent’s submissions

11 The Third Respondent submitted that the proceedings were commenced prematurely given that the environmental impact assessment process the subject of complaint was on going. As identified at [28] of the judgment the Applicant admitted at the hearing that had the Scope 3 emission calculations provided in Centennial’s response document been part of the Environmental Impact Study (EIS) on public exhibition then these proceedings would not have been commenced. It should have been clear to the Applicant on 16 October 2006 that the proceedings were redundant because that was when the response document was required of Centennial by the Director-General. (I should note I do not know exactly when the Applicant became aware of the Director-General’s requirement but the response document prepared was dated 30 October 2006 and the Applicant was provided with it shortly thereafter). There were a lot of preparatory costs thrown away because of the late abandonment of so many grounds of challenge.

12 Centennial was entirely successful because no injunctive order was made affecting it, its main objective in the proceedings.

Finding

13 Under s 69(2)(a) of the Land and Environment Court Act 1979 costs are at the discretion of the Court. That discretion must be exercised judicially, see Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 – 97 per McHugh J. The usual order in Class 4 proceedings is that costs follow the event unless there is some disentitling conduct by a party related to the litigation, see Oshlack at 97 - 98.

14 The Applicant was partially successful in the proceedings in that a declaration was made which confirmed that one of the grounds supporting the principal ground of challenge was correct. I did not make all the declarations and orders sought however.

15 The relevant costs principles identified in the cases relied on by the parties are generally in agreement, with each party emphasising that dicta which particularly supports its arguments. I particularly note [7] –[14] of GPT as a useful summary of the relevant principles and cases where there are multiple issues and the successful litigant fails on some issues. While the original points of claim raised a number of grounds of challenge, by the hearing there was only one substantive ground supported by two different arguments. In other words, I would not characterise the proceedings at hearing as raising multiple issues such as occurred in Farah and GPT and gave rise to the apportionment of costs according to the outcome of the multiple issues in those cases. The principle quoted in Waters v PC Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported) per Mahoney J, as cited by Biscoe J in GPT at [10], is more apposite in the circumstances of this case. In Waters Mahoney J approved of the statement in Ritchie's Supreme Court Procedure that:

Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupy the bulk of time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is particularly dominant or separable, it would ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.

Further, Talbot J stated in Farah at [15] that:

I agree that there is reluctance on the part of courts to make an arithmetic or mathematical assessment on an issue by issue basis and that it is generally preferable to adopt a broad brush approach to making costs orders, when necessary, on a proportional basis.

16 In terms of the hearing, there were two substantive issues raised in relation to the one remaining ground of challenge and the Applicant was successful only in relation to one of those issues. I consider there was overlap between the two issues however and that a number of the issues I had to consider in relation to the first issue (Applicant unsuccessful) were also relevant to the second issue (Applicant successful). I do not consider in these circumstances that apportionment of costs is appropriate as between the two issues so that the Applicant would receive 50 per cent of his costs, as the Respondents argued. I agree with the Applicant’s counsel that the hearing dealt with the issues efficiently in two days.

17 The failure to obtain a consequential order does not disentitle the Applicant to costs. That was not a result of any failure on the Applicant’s part such as the premature commencement of proceedings. The Applicant obtained a declaration about a significant matter in the case. The commencement of proceedings was not automatically negated by Centennial producing the response document required by the Director-General after the public exhibition period for the EIS had been completed. I gave three reasons at [150] as to why I refused to make the further declarations and orders sought. One of those was that I considered the response document was sufficiently within the public domain due to arrangements made in relation to it by the Second Respondent not to warrant the EIS being re-exhibited. The Applicant should have all his costs of the hearing.

18 The only issue is whether there should be an order reflecting the late abandonment of issues by the Applicant. I consider there must have been some costs thrown away, albeit unspecified, by the two Respondents and will order that costs associated with the “four challenges” contained in the Applicant’s Points of Claim abandoned on 1 November 2006 are not payable.

19 Centennial was a beneficiary of the decision under challenge and chose to defend the proceedings. It should share equally in the costs order with the Second Respondent (see Cutcliffe v Lithgow City Council [2006] NSWLEC 463 at [50] ss(c)). The usual costs order implies that costs are borne jointly and severally where awarded against multiple parties, in the absence of any specific orders for apportionment of costs.

20 The issue raised by the Third Respondent of payment for a third counsel is a matter for taxation and I will not make any order in that regard.

21 In relation to the hearing on costs on 22 February 2007, the Applicant should have his costs having been largely successful.

Orders

22 The Court orders that the Second and Third Respondents pay the Applicant’s costs including the costs of the hearing on 22 February 2007 but for those associated with the “four challenges” contained in the Applicant’s Points of Claim which were abandoned on 1 November 2006.