Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) and Ulan Coal Mines

[2011] NSWLEC 231

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) & Ulan Coal Mines [2011] NSWLEC 231
Hearing dates:	29 November 2011
Decision date:	29 November 2011
Jurisdiction:	Class 4
Before:	Moore AJ
Decision:	I dismiss the application with costs.
Cases Cited:	Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 373 Fisse v Department of Treasury (2008) 253 ALR 52
Category:	Interlocutory applications
Parties:	Moolarben Coal Mines Pty Ltd ACN108 601 672 (Applicant) Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) (First respondent) Director-General of the (former) Department of Industry and Investment NSW (Minerals Division) (Second respondent) Ulan Coal Mines Ltd ACN 000 189 248 (Third respondent)
Representation:	Ms V R Brigden (Applicant) Not applicable (First and Second Respondents) Mr R C Beasley SC (Third Respondent) Sparke Helmore Lawyers (Applicant) Not applicable (First and Second Respondents) McCullough Robertson Lawyers (Third Respondent)
File Number(s):	40623 of 2011

EX TEMPORE Judgment

1. I gave judgment in this matter on 8 November 2011 and pronounced orders disposing of the application. Those orders included an order that the third respondent pay the applicant's costs of the proceedings. They were final orders. As to the costs order, any party proposing a departure from the rule that costs follow the event should, in my opinion, have indicated an intention to argue that point before judgment was given. That is certainly the approach in the Federal Court: see, for example, Fisse v Department of Treasury (2008) 253 ALR 52, and I have not been referred to any authority of this Court or the Court of Appeal which suggests otherwise.

1. It is true that when I gave judgment I indicated the parties could approach the Court that day if some costs order other than the order actually made, was to be sought. My reason, in making this observation, was really concerned with the circumstances of the first and second respondent for whom no costs order was then being made. As I recall, I made a statement to this effect when giving judgment.

1. No such approach was made that day by the third respondent. It did, however, write to the court on 17 November 2011 requesting the matter be re-listed in order to make submissions concerning costs. This letter erroneously assumed the question of costs had not been settled by the orders already made. What the third respondent was really seeking to do was to re-open the judgment. It filed a notice of motion in court to this effect today. I do not propose to take the step of re-opening the judgment.

1. In so far as I might exercise the extraordinary discretionary power to re-open the judgment to hear submissions on the question of costs, the case for third respondent has foreshadowed is a weak one. In effect, the third respondent wants a costs order reflecting the outcome on various issues, some resolved in its favour and some in favour of the applicant. This approach is not one to be encouraged: see, for example, Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 373. This case is not one, in my opinion, where an issue or group of issues was clearly dominant. It is true that expert evidence was sought to be led by the applicant, and rejected, on an issue on which the applicant ultimately failed involving an allegation of Wednesbury unreasonableness. However the applicant was entitled to proceed on the basis that it was arguable the evidence would not be rejected having regard to existing authority. Indeed the basis on which the evidence was rejected (and necessarily resulted in the failure of the applicant's case on this issue) was first raised by me though ultimately embraced by senior counsel for the third respondent. In addition the evidence of the experts was directed to another issue, albeit one on which the applicant also failed, namely the issue concerned "successful use".

1. The above circumstances do not suggest to me that the third respondent should be permitted to re-open the judgment.

1. I dismiss the application with costs.