Johnson v Lake Macquarie City Council (No 3)

[1999] NSWLEC 207

Land and Environment Court

of New South Wales

CITATION:

Johnson v Lake Macquarie City Council and Anor (No 3) [1999] NSWLEC 207

PARTIES

APPLICANT:
Ken Johnson

RESPONDENTS:
Lake Macquarie City Council and Anor

NUMBER:

40173 of 1995

CORAM:

Talbot J

KEY ISSUES:

Costs :- - remitted hearing from Court of Appeal - whether public interest litigation - submitting appearance by one party

LEGISLATION CITED:

DATES OF HEARING:

08/20/1999

EX TEMPORE JUDGMENT DATE:

08/20/1999

LEGAL REPRESENTATIVES:

APPLICANT:
In person

SOLICITORS:
n/a

FIRST RESPONDENT:
Mr I J Hemmings (Barrister)

SOLICITORS:
Peter Rees Solicitor

SECOND RESPONDENT:
Mr P A Carroll (Solicitor)

SOLICITORS:
Carroll & O'Dea

JUDGMENT:

IN THE LAND AND Matter No. 40173 of 1995
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 20 August 1999

Ken Johnson
Applicant

v
Lake Macquarie City Council
First Respondent
Pulver Cooper and Blackley Pty Limited
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT ON COSTS


1. HIS HONOUR: I have heard short submissions from the two respondents in relation to any order for costs to be made following the judgment delivered on 21 June 1999.

2. Mr Hemmings, for the respondent council, relies on the simple submission that his client was successful in the proceedings in upholding the effect of the s 104A notice. Accordingly the Court should exercise its discretion in favour of his client as a successful party.

3. On the other hand, Mr Carroll, who appears for the second respondent, points out that his client did not incur the cost of further appearances, except to a limited extent in order to clarify its position, and, as I recall it, on one occasion as the result of a specific inquiry from the bench in order to confirm that position.

4. The second respondent was nevertheless retained by the applicant as a party to the proceedings. In my view it acted responsibly by indicating to the Court that it did not propose to make any further submissions, that it would embrace the council's case and that it would abide any decision of the Court save in relation to costs in respect of which it wanted to be heard.

5. Mr Johnson draws the Court's attention to whether or not order 4 made in the Court of Appeal ((1998) 101 LGERA 76 at p 97) adequately protects him for the costs incurred following the raising of the issue of the s 104A notice in March 1996. The late raising of the issue caused an adjournment and a further hearing in June 1996. Mr Johnson believes that his representation was disadvantaged, to say the least, by a change of counsel necessitated by the completion of the hearing at a date other than that which was originally proposed.

6. Mr Johnson also makes a submission that the second respondent, having been successful in respect of the only matter that it argued in the Court of Appeal, thereafter had no further interest in the proceedings and, accordingly, should not be entitled to an order for costs.

7. I have already indicated the course that the second respondent took in relation to the further hearing before me is a responsible one. Whil ever it remained a party to the proceedings I see no reason not to recognise the decision made to limit costs.

8. A matter of some further moment to Mr Johnson is the question of whether the litigation was public interest litigation. He says this is a case which falls appropriately within the guidelines (if they can be properly so described) set down by the High Court in Oshlack . No doubt by reference back to the matters Stein J took into account at first instance.

9. Mr Johnson tells the Court that he had the benefit of a grant of legal aid on at least two occasions during the conduct of this long and drawn out matter. He asserts the grant was based upon the public interest nature of the litigation and thus the Court should recognise the fact that the legal aid authorities were sufficiently persuaded of the public interest nature and to thereby make an order which recognises that interest on his behalf.

10. Mr Johnson submits and asserts that the development application and the subsequent consent which was the subject of these proceedings created a serious threat to the environment. There were species of endangered fauna exposed to harm as a consequence of the proposed development. The Court should have regard to the important legislation contained in the Threatened Species Conservation Act 1995 and the National Parks and Wildlife Act 1974 to recognise the litigation as being in the public interest in the recognised sense.

11. I do not have the necessary evidence or the benefit of any documentary support for an assertion to the above effect. However the Court does recognise, of course, that any development of land which is in its natural state is likely to have some negative consequences for the environment.

12. I am not satisfied that there is anything before me to justify a finding that the litigation falls within the concept of public interest litigation as it is now understood following the judgment of the High Court in Oshlack .

13. The Court proposes to exercise its discretion by adopting the respondents’ submission and having regard to the outcome of the litigation at the remitted hearing. I note that the Court of Appeal took into account that a costs order would be made at this further hearing. It made a specific order in that respect which appears to be self executing in so far as the first instance hearing before Stein J is concerned.

14. The order I make is that the applicant pay the costs of the first and second respondents in regard to the further hearing of this matter before me including the costs of today.