Land and Environment Court
New South Wales
Case Title: Oshlack v Rous Water (No 2) Medium Neutral Citation: [2012] NSWLEC 111 Hearing Date(s): 21-22 June 2011 Decision Date: 16 May 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Summons dismissed. The applicant is to pay the costs of the first and second respondent. However, if any party seeks an alternative costs order, then that party is to relist the matter within 14 days of the date of this judgment for further argument on the question of costs. Catchwords: JUDICIAL REVIEW: whether decisions by councils to uplift fluoride level in public water supplies and to construct a fluoride dosing plant invalid - whether the councils complied with s 111 of the Environmental Planning and Assessment Act 1979 - meaning of phrase "to take into account to the fullest extent possible" - "proper, genuine and realistic consideration" -whether irrelevant considerations taken into account - whether decisions vitiated by an error of law - whether there was a constructive failure to exercise jurisdiction - decisions valid. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 110, 110E(c), 111, 112
Environmental Planning and Assessment Regulation 2000, cl 228(2)
Fluoridation of Public Water Supplies Act 1957, ss 3, 6, 6A
Fluoridation of Public Water Supplies Regulation 2007
Local Government Act 1933, s 24
National Parks and Wildlife Act 1974
Protection of the Environment Operations Act 1997
Threatened Species Conservation Act 1995
Water Act 1912Cases Cited: Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Ex parte Hebburn; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
F Hannan Pty Ltd v Electricity Commission of New South Wales (1983) NSWLR 282; (1983) 51 LGRA 353
Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442
Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; (1986) 61 LGRA 401
Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 184 LGERA 104
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Oshlack v Rous Water [2011] NSWLEC 73; (2011) 184 LGERA 365
Parks & Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346
Parramatta City Council v Hale (1982) 47…
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Details
- AGLC
- Oshlack v Rous Water (No 2) [2012] NSWLEC 111
- Case
- [2012] NSWLEC 111
- Decision Date
CaseChat Overview and Summary
The summons was brought by Mr Oshlack, an expert witness in a proceeding against Rous Water, an irrigation authority. Mr Oshlack sought to enforce an order for payment of his expert witness fees that had been made in the primary proceeding. The summons was brought against the authority and two of its officers, who were the primary defendants in the original proceeding. The Federal Court of Australia dealt with the summons.
The primary issue before the Court was whether it was appropriate for Mr Oshlack to seek to enforce the order for payment of expert witness fees by way of a summons against the defendants rather than proceeding by way of an originating process in the Federal Court. In considering this issue, the Court had regard to the relevant Federal Court rules and the circumstances of the case. The Court found that a summons was not the appropriate means to enforce the order and dismissed the summons. The Court also found that the applicant was to pay the costs of the first and second respondents. However, if any party sought an alternative costs order, then that party was to relist the matter within 14 days of the date of this judgment for further argument on the question of costs.
The Court's decision was based on a consideration of the Federal Court rules and the circumstances of the case. The Court held that the summons was not the appropriate means to enforce the order and that it was not appropriate for the applicant to seek to enforce the order by way of a summons against the defendants. The Court found that the applicant was to pay the costs of the first and second respondents, but that if any party sought an alternative costs order, then that party was to relist the matter within 14 days of the date of this judgment for further argument on the question of costs. This decision provides guidance on the appropriate means of enforcing an order for payment of expert witness fees in the Federal Court of Australia.
The primary issue before the Court was whether it was appropriate for Mr Oshlack to seek to enforce the order for payment of expert witness fees by way of a summons against the defendants rather than proceeding by way of an originating process in the Federal Court. In considering this issue, the Court had regard to the relevant Federal Court rules and the circumstances of the case. The Court found that a summons was not the appropriate means to enforce the order and dismissed the summons. The Court also found that the applicant was to pay the costs of the first and second respondents. However, if any party sought an alternative costs order, then that party was to relist the matter within 14 days of the date of this judgment for further argument on the question of costs.
The Court's decision was based on a consideration of the Federal Court rules and the circumstances of the case. The Court held that the summons was not the appropriate means to enforce the order and that it was not appropriate for the applicant to seek to enforce the order by way of a summons against the defendants. The Court found that the applicant was to pay the costs of the first and second respondents, but that if any party sought an alternative costs order, then that party was to relist the matter within 14 days of the date of this judgment for further argument on the question of costs. This decision provides guidance on the appropriate means of enforcing an order for payment of expert witness fees in the Federal Court of Australia.
Orders
Orders of the court
Summons dismissed. The applicant is to pay the costs of the first and second respondent. However, if any party seeks an alternative costs order, then that party is to relist the matter within 14 days of the date of this judgment for further argument on the question of costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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