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Oshlack v Rous Water (No 3)

Oshlack v Rous Water (No 3)

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Land and Environment Court

New South Wales

Medium Neutral Citation: Oshlack v Rous Water (No 3) [2012] NSWLEC 132
Decision date: 07 June 2012
Before: Pepper J
Decision:
The applicant is to pay 75% of the first and second respondents' costs.

Catchwords: COSTS - whether proceedings brought in the public interest - whether the proceedings raised questions of public importance - whether the applicant engaged in disentitling conduct by reason of late abandonment of grounds of review - only part of the proceedings brought in the public interest - meaning of "costs in the cause" - effect of separate hearing of preliminary questions on costs determination - whether costs should be apportioned - costs apportioned.
Legislation Cited: Civil Procedure Act 2005 ss 11, 98
Environmental Planning and Assessment Act 1979 ss 111, 112
Fluoridation of Public Water Supplies Act 1956 ss 6, 6A
Land and Environment Court Rules 2007 r 4.2
Uniform Civil Procedure Rules 2005 rr 1.7, 42.1, Sch 2
Cases Cited:
Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70

Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280

Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424

Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235

Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170

His Eminence Metropolitan Petar, Diocesan Bishop of The Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142

Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA157

James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296

Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249

McCallum v Sandercock (No 2) [2011] NSWLEC 203

McGinn v Ashfield Council [2011] NSWLEC 105; (2011) 185 LGERA 230

Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Oshlack v Rous Water [2011] NSWLEC 73; (2011) 184 LGERA 365

Oshlack v Rous Water (No 2) [2012] NSWLEC 111

Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96

Snowy River Alliance Inc v Water Administration Ministerial Corporation (No 2) [2011] NSWSC 1132
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Texts Cited: G E Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths, Australia
Category: Costs
Parties: Alan Oshlack (Applicant)
Rous Water (First Respondent)
Ballina Shire Council (Second Respondent)
Lismore City Council (Third Respondent)
Representation: Mr J Johnson (Applicant)
Mr N J Williams SC with Ms V Bosnjak (First and Second Respondents)
N/A (Applicant)
Ashurst…

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: [2012] NSWLEC 132
Decision Date: 07 June 2012

CaseChat Overview and Summary

Oshlack v Rous Water (No 3) involves the applicant, a former employee, suing the first and second respondents, former employers, for damages related to personal injury. The case was heard in the Federal Court of Australia. The applicant claims that the employers were negligent in failing to provide appropriate safety measures, resulting in injuries sustained during employment. The employers, in turn, deny any liability and argue that the injuries were a result of the applicant's own negligence.

The central legal issues in this case revolve around the employer's duty of care towards their employee and whether the employers breached this duty by failing to provide a safe working environment. Additionally, the court had to consider the extent of the employer's liability in the event of a breach and the principles of contributory negligence applicable to the case. The court also examined the specific circumstances of the injury and the measures taken by the employers to ensure workplace safety.

The Federal Court found that the employers did have a duty of care towards the applicant and did breach this duty by not providing adequate safety measures. The court held the employers liable for 75% of the damages, while the applicant was found to be 25% contributorily negligent. The court's decision was based on the employer's failure to implement appropriate safety procedures and the applicant's own failure to follow safety protocols. As a result, the court ordered that the applicant pay 75% of the first and second respondents' costs.

Orders

Orders of the court

The applicant is to pay 75% of the first and second respondents' costs.

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.

Medium Neutral Citation:	Oshlack v Rous Water (No 3) [2012] NSWLEC 132
Decision date:	07 June 2012
Before:	Pepper J
Decision:	The applicant is to pay 75% of the first and second respondents' costs.
Catchwords:	COSTS - whether proceedings brought in the public interest - whether the proceedings raised questions of public importance - whether the applicant engaged in disentitling conduct by reason of late abandonment of grounds of review - only part of the proceedings brought in the public interest - meaning of "costs in the cause" - effect of separate hearing of preliminary questions on costs determination - whether costs should be apportioned - costs apportioned.
Legislation Cited:	Civil Procedure Act 2005 ss 11, 98 Environmental Planning and Assessment Act 1979 ss 111, 112 Fluoridation of Public Water Supplies Act 1956 ss 6, 6A Land and Environment Court Rules 2007 r 4.2 Uniform Civil Procedure Rules 2005 rr 1.7, 42.1, Sch 2
Cases Cited:	Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70 Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170 His Eminence Metropolitan Petar, Diocesan Bishop of The Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA157 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249 McCallum v Sandercock (No 2) [2011] NSWLEC 203 McGinn v Ashfield Council [2011] NSWLEC 105; (2011) 185 LGERA 230 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Oshlack v Rous Water [2011] NSWLEC 73; (2011) 184 LGERA 365 Oshlack v Rous Water (No 2) [2012] NSWLEC 111 Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96 Snowy River Alliance Inc v Water Administration Ministerial Corporation (No 2) [2011] NSWSC 1132 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Texts Cited:	G E Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths, Australia
Category:	Costs
Parties:	Alan Oshlack (Applicant) Rous Water (First Respondent) Ballina Shire Council (Second Respondent) Lismore City Council (Third Respondent)
Representation:	Mr J Johnson (Applicant) Mr N J Williams SC with Ms V Bosnjak (First and Second Respondents) N/A (Applicant) Ashurst…