Mills v Water Admin. Min. Corp.

[2001] NSWLEC 82

Land and Environment Court

of New South Wales

CITATION:

Mills & Ors v Water Admin. Min. Corp. & Anor. [2001] NSWLEC 82

PARTIES:

APPLICANTS:
Mills & Ors.

RESPONDENTS:
Water Admin. Min. Corp. & Anor.,

FILE NUMBER(S):

30162 of 1997

CORAM:

Bignold J

KEY ISSUES:

Costs :- in class 3 proceedings remitted from Court of Appeal—not prosecuted in consequence of second Respondent’s decision not to renew impugned approval

LEGISLATION CITED:

Water Act 1912

CASES CITED:

Re the Minister for Immigration and Ethnic Affairs Ex parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING:

9 March 2001

EX TEMPORE
JUDGMENT DATE :

03/09/2001

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr F Donohoe, Barrister
SOLICITORS
Callachor & Helby

FIRST RESPONDENT:
Mr M Hadley, Barrister
SECOND RESPONDENT:
Mr W Davison, SC
SOLICITORS
Department of Land and Water Conservation
McIntosh McPhillamy & Co.

JUDGMENT:

IN THE LAND AND

Matter No. 30162 of 1997

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

9 March 2001

GRANT MILLS & ORS.

Applicants

v

WATER ADMINISTRATION MINISTERIAL CORPORATION

First Respondent

ENGSTA PTY LIMITED

Second Respondent

JUDGMENT

Bignold J:

1. This is a matter that comes back to the Court on remitter from the Court of Appeal following a successful appeal by the first and second Respondents (see (2000) 110 LGERA 371) against my judgment handed down on 5 August 1999 (see (1999) 104 LGERA 399).

2. The Court of Appeal, in allowing the appeal, remitted the matter to this Court for further hearing conformably to the decision of the Court of Appeal as to the proper construction of provisions of the Water Act 1912 (s 171(3) and s 174(2)) which was crucial to the outcome of the case before me at first instance.

3. The remitted matter came before the Court for the first time on 29 November 2000 when the Registrar, I think at the request of the parties, directed that the matter be returned to me as the trial Judge for further directions for the hearing of the case in the new term. The matter came before me on 9th February this year when Senior Counsel for the second Respondent, the person who had the benefit of the approval granted under the Water Act which was the subject of the proceedings by way of objection from the Applicants both before the Local Land Board and before myself (by way of appeal against the Board’s decision) informed the Court that the approval in question had expired (that expiry having occurred on 26 July 2000 in accordance with the Water Act (providing that any approval under the section would operate for five years) coincidentally, two days before the Court of Appeal delivered its judgment).

4. The Water Act contained provision for renewal and I was informed by Counsel for the first Respondent that renewal of approvals happens as a matter of routine, and applications for renewal could be made after the expiry of the approval. Significantly, the Act does not require public notification to local occupiers of any application to renew, and in this respect is to be contrasted with the detailed provisions of the Act requiring public notification of an application for an original grant.

5. More significantly still, Senior Counsel for the second Respondent indicated to the Court that his client did not intend to seek a renewal of the existing approval and that it would be prepared to undertake not to do so. In these circumstances, it was submitted on behalf of the second Respondent that there was no utility in the prosecution of the remitted case, a proposition which was self-evidently sound and readily gained the concurrence of the other parties appearing before me.

6. However, as it had only been mentioned by Senior Counsel for the second Respondent to Counsel for the Applicants on the evening before the matter came before me on 9 February it was in those circumstances that I stood the matter over for further mention to enable the Applicants’ attorney to obtain instructions as to what they wished to do with the case.

7. The matter came back before me on 23 February 2001 when the Court was informed that the Applicants accepted the position as outlined by Senior Counsel for the second Respondent but that they had incurred costs involved since the remitter in the appearances before the Court that had occurred in the meanwhile and this would seek an order for costs thrown away.

8. The matter was again adjourned on that occasion with the expectation that the parties would be able to agree on the form of orders and the substance of orders to be made finally disposing of the proceedings with the opportunity for any outstanding issue on costs to be adjudicated upon if that matter were not determined by the consent orders of the parties.

9. Today the Court has been presented with draft consent orders made in consequence of the representations by Senior Counsel for the second Respondent about the second Respondent’s decision not to seek to renew the approval and to undertake not to do so and those orders are appropriate to be made and I will formally make them.

10. The only matter in the draft minutes of order which is not agreed upon is order No 6 which seeks an order that the Respondents pay the Applicants’ costs of the proceedings before the Court that were incurred in the period from 28 July 2000 (the date of the remitter from the Court of Appeal) to the 9 February 2001 which was the first occasion the matter came back before me when Senior Counsel for the second Respondent put the submission to the Court that his client would undertake not to seek a renewal of the existing approval, with the consequence that no conceivable utility would be secured by prosecuting the case further.

11. Today, in support of the application for costs, the Applicants have argued that costs have been incurred between the date of the remitter and 9 February 2001when the matter was mentioned before me when the seeds of what has proved to be the resolution of the case were amply sown by Senior Counsel for the second Respondent. The submission in support of the costs order is made simply upon the basis that the ultimate denouement could have been reached earlier in the piece (for example soon after the expiry of the approval) and that in consequence, the Applicants have incurred costs including preparation costs for the continued hearing that was anticipated in this Court by virtue of the remitter.

12. The costs order sought is against all Respondents. Mr Hadley, on behalf of the first Respondent has argued cogently that no order upon the basis propounded by Counsel for the Applicants lies fairly against his client and I am persuaded that his argument should be accepted. This leaves the position with the second Respondent which has submitted that the Court should apply the conventional approach to the resolution of the costs question when proceedings are settled or terminated without any hearing on the merits and reliance is placed upon the oft cited judgment of Justice McHugh sitting singly in the High Court in the case of Re the Minister for Immigration and Ethnic Affairs Ex parte Lai Qin (1997) 186 CLR 622 where his Honour propounds the general principle deducible from the decided cases that where each party is adjudged as having acted reasonably in the litigation and the matter is resolved without a need for any formal hearing or judicial adjudication, the normal cost result is that each party is left to pay its own costs. That was the submission advanced on behalf of the second Respondent today in reliance upon that general principle.

13. In my opinion there is force in the submission advanced by the Applicants that the decision of the second Respondent not to renew the now expired approval and the consequent submission that fell from the second Respondent as to the lack of utility of the proceedings going any further in this Court could have been made or communicated to the Applicants earlier in point of time and thereby avoided the incurring of further costs in the proceedings. However I do note, and it is common ground, that the second Respondent’s position was announced on the first occasion that the matter came before me on 9 February 2001 having been before the Registrar on 29 November last year, being the first occasion that the matter was mentioned in this Court following the remitter from the Court of Appeal in July of last year.

14. In the circumstances, I think that the general rule referred to by Justice McHugh Lai Qin should not be applied in the present case, because costs have been unnecessarily incurred and the unnecessary incurring of them can be squarely and fairly laid at the feet of the second Respondent for the reasons that I have given. The costs are not likely to be great particularly given the enormous amount of costs that have been already spent on this litigation which has been ongoing for several years, since the original grant of approval by the second Respondent in July 1995.

15. In the circumstances, I order that the second Respondent pay the Applicants’ costs of the proceedings in this Court incurred in the period between 28 July 2000 (when the case was remitted to the Court from the Court of Appeal) and 9 February 2001 when the second Respondent put to the Court that it would formally undertake not to seek a renewal of the existing approval, with the consequence that no utility would be served in any further prosecution of the case.

16. Accordingly, I make the orders, by consent, as set forth in paragraphs 4 and 5 of the minutes of order noting the matters contained in paragraphs 1, 2, 3 and 7 and in relation to the question of costs I order that the second Respondent pay the Applicants’ costs incurred in the Court between 28 July 2000 and 9 February 2001 in the sum agreed or failing agreement, as assessed.