Hastings Point Progress Association Inc v Tweed Shire Council (No 3)

Hastings Point Progress Association Inc appealed to the Supreme Court of New South Wales, Court of Appeal, against an order of the Land and Environment Court concerning costs. The dispute arose from unsuccessful public interest litigation initiated by the appellant against the Tweed Shire Council and a commercial developer, the second respondent.

The primary legal issue before the Court of Appeal was whether the general rule that an unsuccessful party pays the costs of the successful party should be departed from in this instance. Specifically, the court considered whether the appellant, as an alleged public interest group, and the nature of the proceedings warranted a different costs order, notwithstanding the commercial nature of the second respondent and the fact that the appellant was not directly affected by the development.

The Court of Appeal reasoned that while the appellant appeared to be a genuine public interest group, this factor alone was insufficient to justify a departure from the ordinary rule regarding costs, particularly as the second respondent was a commercial enterprise, not a State or government authority. The court found no substantial evidence demonstrating "something more" that would warrant deviating from the usual costs order. The Land and Environment Court Rules 2007, rule 4.2, was considered of little assistance on appeal to the Supreme Court.

The Court of Appeal varied the previous costs order, dismissing the appeal and ordering the appellant to pay the second respondent's costs in the Court of Appeal, including the costs of an application to vary the earlier orders. The application to vary the orders was otherwise dismissed.