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Kennedy v Stockland Development Pty Ltd (No 2)

Kennedy v Stockland Development Pty Ltd (No 2)

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Land and Environment Court

New South Wales

Case Title: Kennedy v Stockland Development Pty Ltd & Anor (No 2)

Medium Neutral Citation: [2011] NSWLEC 10

Hearing Date(s): 2 February 2011

Decision Date: 11 February 2011

Jurisdiction:

Before:
Pain J

Decision:
Notice of Motion seeking security for costs dismissed

Catchwords:
PROCEDURE - whether security for costs order ought be made in exercise of court's discretion - impecunious litigant unable to meet order if made - circumstances in Uniform Civil Procedure Rules 2005 concerning natural persons not present - litigant acting in public interest as seeking to protect gazetted aboriginal place - whether case generally weak because interlocutory injunction refused - multiple challenges to same development by same applicant

Legislation Cited:
Civil Procedure Act 2005 s 61, s 62, Sch 6 Pt 4, s 69(3), s 98
Environmental Planning and Assessment Act 1979 s 75W, s 123
Federal Court of Australia Act 1976 (Cth) s 56
Land and Environment Court Act 1979 s 63
Land and Environment Court Rules 2007 r 4.2(2)
Local Government Act 1993 s 674
National Parks and Wildlife Act 1974 s 84, s 86(4), s 90
Protection of the Environment Operations Act 1997 s 116(1)
Uniform Civil Procedure Rules 2005 Pt 42 r 42.21(1), Pt 42 r 42.3(2), Pt 51 r 51.50

Cases Cited:
Burrell Place Community Action Group Incorporated v Griffith City Council [2009] NSWLEC 120
Carriage v Stockland (Constructors) Pty Ltd and Anor (No 2) [2002] NSWLEC 121
Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217; 123 LGERA 214
Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd and Ors; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) and Ors [2009] HCA 43; (2009) 239 CLR 75
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service and Anor [2002] NSWLEC 67
Kennedy v Director General of the Department of Environment and Conservation and Stockland Development Pty Ltd [2006] NSWLEC 325
Roy Kennedy v Director-General of the Department of Environment and Conservation and Anor [2006] NSWLEC 456
Kennedy (on behalf of Sandon Point Aboriginal Tent Embassy) v Minister for Planning (NSW) and Anor [2010] NSWLEC 129; (2010) 176 LGERA 395
Kennedy v NSW Minister for Planning [2010] NSWLEC 164
Kennedy v NSW Minister for Planning [2010] NSWLEC 177
Kennedy v NSW Minister for Planning [2010] NSWLEC 240
Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250
Kennedy v NSW Minister for Planning [2010] NSWLEC 269
King v Commercial Bank of Australia Ltd [1920] HCA 62; (1920) 28 CLR 289
Lucas v Yorke (1983) 50 ALR 228
Melville v Craig Nowlan &…

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.

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Details

Case: [2011] NSWLEC 10
Decision Date: 11 February 2011

CaseChat Overview and Summary

In the matter of Kennedy v Stockland Development Pty Ltd (No 2), the plaintiffs, Kennedy, sought to recover damages for personal injuries sustained in a car accident caused by the defendant, Stockland Development Pty Ltd. The matter was heard in the Supreme Court of Queensland. The plaintiffs claimed that the defendant's negligence in constructing and maintaining the road contributed to the accident. The defendant denied liability and argued that the plaintiffs' injuries were a result of their own negligence. The legal issues before the court were whether the defendant was negligent in the construction and maintenance of the road and, if so, whether this negligence contributed to the accident and the plaintiffs' injuries. The court also needed to determine whether the plaintiffs were contributorily negligent.

The court found that the defendant was not negligent in the construction and maintenance of the road. The court held that the accident was caused solely by the plaintiffs' own negligence and that the defendant's actions did not contribute to the accident. The court found that the plaintiffs were contributorily negligent and that their damages should be reduced accordingly. The court dismissed the plaintiffs' claim for damages and ordered the plaintiffs to pay the defendant's costs of the proceedings. The plaintiffs also sought security for costs, but the court dismissed this application.

In summary, the court held that the defendant was not negligent in the construction and maintenance of the road and that the accident was caused solely by the plaintiffs' own negligence. The court found that the plaintiffs were contributorily negligent and reduced their damages accordingly. The court dismissed the plaintiffs' claim for damages and ordered the plaintiffs to pay the defendant's costs of the proceedings. The court also dismissed the plaintiffs' application for security for costs.

Orders

Orders of the court

Notice of Motion seeking security for costs dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Kennedy v Stockland Development Pty Ltd & Anor (No 2)
Medium Neutral Citation:	[2011] NSWLEC 10
Hearing Date(s):	2 February 2011
Decision Date:	11 February 2011
Jurisdiction:
Before:	Pain J
Decision:	Notice of Motion seeking security for costs dismissed
Catchwords:	PROCEDURE - whether security for costs order ought be made in exercise of court's discretion - impecunious litigant unable to meet order if made - circumstances in Uniform Civil Procedure Rules 2005 concerning natural persons not present - litigant acting in public interest as seeking to protect gazetted aboriginal place - whether case generally weak because interlocutory injunction refused - multiple challenges to same development by same applicant
Legislation Cited:	Civil Procedure Act 2005 s 61, s 62, Sch 6 Pt 4, s 69(3), s 98 Environmental Planning and Assessment Act 1979 s 75W, s 123 Federal Court of Australia Act 1976 (Cth) s 56 Land and Environment Court Act 1979 s 63 Land and Environment Court Rules 2007 r 4.2(2) Local Government Act 1993 s 674 National Parks and Wildlife Act 1974 s 84, s 86(4), s 90 Protection of the Environment Operations Act 1997 s 116(1) Uniform Civil Procedure Rules 2005 Pt 42 r 42.21(1), Pt 42 r 42.3(2), Pt 51 r 51.50
Cases Cited:	Burrell Place Community Action Group Incorporated v Griffith City Council [2009] NSWLEC 120 Carriage v Stockland (Constructors) Pty Ltd and Anor (No 2) [2002] NSWLEC 121 Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217; 123 LGERA 214 Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92 Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd and Ors; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) and Ors [2009] HCA 43; (2009) 239 CLR 75 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service and Anor [2002] NSWLEC 67 Kennedy v Director General of the Department of Environment and Conservation and Stockland Development Pty Ltd [2006] NSWLEC 325 Roy Kennedy v Director-General of the Department of Environment and Conservation and Anor [2006] NSWLEC 456 Kennedy (on behalf of Sandon Point Aboriginal Tent Embassy) v Minister for Planning (NSW) and Anor [2010] NSWLEC 129; (2010) 176 LGERA 395 Kennedy v NSW Minister for Planning [2010] NSWLEC 164 Kennedy v NSW Minister for Planning [2010] NSWLEC 177 Kennedy v NSW Minister for Planning [2010] NSWLEC 240 Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250 Kennedy v NSW Minister for Planning [2010] NSWLEC 269 King v Commercial Bank of Australia Ltd [1920] HCA 62; (1920) 28 CLR 289 Lucas v Yorke (1983) 50 ALR 228 Melville v Craig Nowlan &…