Rocla Pty Ltd v Minister for Infrastructure, Planning and Natural Resources & Anor

[2006] NSWLEC 481

Land and Environment Court

of New South Wales

CITATION:

Rocla Pty Ltd v Minister for Infrastructure, Planning and Natural Resources & Anor [2006] NSWLEC 481

PARTIES:

APPLICANT
Rocla Pty Ltd

FIRST RESPONDENT
Minister for Infrastructure, Planning and Natural Resources

SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10447 of 2005

CORAM:

Talbot J

KEY ISSUES:

Practice and Procedure :- payment of Court Appointed Expert expenses where issue not raised by a party.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
National Parks and Wildlife Act 1974

DATES OF HEARING:

13/07/2006 (written submissions), 19/07/2006 (written submissions)

 
DATE OF JUDGMENT: 

08/04/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M G Craig QC
SOLICITORS
Blake Dawson Waldron

FIRST RESPONDENT
Mr P R Clay (barrister)
SOLICITORS
Department of Infrastructure, Planning and Natural Resources

SECOND RESPONDENT
Mr P W Larkin (barrister)
SOLICITORS
Woolf Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

4 August 2006

10447 of 2005 Rocla Pty Ltd v Minister for Infrastructure Planning and Natural Resources & Sutherland Shire Council

JUDGMENT

1 Talbot J: These are class 1 proceedings by way of an appeal against the determination of the Minister as consent authority. The council has been joined as an objector in its capacity as the council for the area in which the subject land is located. Separate issues in respect of the merits of the proposal are raised by the Minister and the council.

2 The Minister as first respondent submits it should not be liable for the costs of the Court Appointed Experts (CAEs) in relation to three of the issues raised in the proceedings. The issues relate to potential impact of the development on:

(1) The Grey-headed Flying Fox;

(2) The Green and Golden Bell Frog; and

(3) Aboriginal Heritage and Archaeology.

3 In relation to the issues raised in regard to the two species of animal, raised only by the council, the Minister will not make any submission. The first respondent has also made its position in respect of Aboriginal Heritage and Archaeology clear, namely that the issue is confined to the fact that no consent under s 90 of the National Parks and Wildlife Act 1974 has been obtained. No CAE has been appointed in relation to the Aboriginal Heritage issue. However the council has been granted leave to amend its Statement of Issues to raise a substantive issue related to Aboriginal Archaeology. The Minister does not intend to participate in that issue and therefore does not propose to put any evidence to the Court nor make any submissions on it.

4 The question is whether the first respondent should be liable to contribute to the costs of CAEs appointed in relation to issues in respect of which it does not intend to rely.

5 The Minister contends that, where there are two respondents in an appeal such as this, each respondent is entitled to raise issues in respect of the appeal. There is no requirement that the issues raised be the same. In effect the applicant may need to face issues from each respondent. Where the issues are not common the applicant effectively has separate contests with each respondent.

6 The applicant argues that to apportion the costs liability in the way suggested by the first respondent would place the applicant in the unfair position of bearing a disproportionate burden in respect of the costs obligation under cl 8 of the Court’s CAE Practice Direction which provides:

The Court expects that the basis for remuneration of the expert will be that which the expert normally charges when undertaking court work for individual parties. The Court will not fix a level of remuneration which is greater than that person's usual rate of charging and may require evidence of the expert's usual rate before making the appointment. The parties are jointly and severally liable for the expert's fees and the expert must look to the parties for payment. The legal profession owes the usual obligation to an expert which a practitioner has engaged for payment of the expert's fees. If requested by the parties appropriate arrangements will be made for the expert's fees to be paid into court and held pending the resolution of the matter. As an alternative the parties could agree that each party's share of the fees will be held in an appropriate account on trust and paid out when owing to the expert. It would be preferable for the parties to confirm the fee arrangement with an expert in writing.

7 Moreover the applicant says the argument of the first respondent misunderstands the role of the CAE, which is to report to the Court for the purpose of assisting the Court to reach the correct decision.

8 The council’s position is that it submits (except as to costs) in respect of any order the Court may make in relation to the sharing of the costs of the CAE appointed in regard to the impact on the Grey-headed Flying Fox. The council also appears to accept that the Court’s determination in this respect may also relate to the costs payable to any CAE appointed to deal with the Aboriginal Archaeology issue.

9 The nature of merits appeals to this Court are such that in certain circumstances third parties may be joined as a party although not strictly entitled to be regarded as a person whose joinder is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon in the conventional sense. Section 39A of the Land and Environment Court Act 1979 reflects this situation by providing:

39A Joinder of parties in certain appeals

On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:
(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or
(b) that:
(i) it is in the interests of justice, or
(ii) it is in the public interest,
that the person be joined as a party to the appeal.

10 Moreover s 98 of the Environmental Planning and Assessment Act 1979 grants a right of appeal to the Court for a person who is an objector to designated development. More relevantly for present purposes, however, if an appeal is made by an applicant for development consent under s 97 where the application is to carry out designated development an objector is entitled to be heard at the hearing of the appeal as if he or she were a party to the appeal. Thus, an objector, such as the council in the present proceedings, who becomes a party or is entitled to be heard as if it were a party is likely to be interested in particular and often confined issues. It is not unusual for the issues raised by an objector to be peculiar to its own regard for the proposed development. Those issues are not always regarded as being in dispute by the other party or parties opposed to the development. Where no Court Appointed Expert is appointed to deal with the particular issue the usual course would be for the parties who join on one issue to engage their own experts, if such expertise is required.

11 The object of appointing a CAE is primarily threefold in:

(1) To limit the expense of calling expert witnesses.

(2) To provide the Court with assistance from an expert who has the relevant level of objectivity.

(3) To avoid unnecessary duplication.

12 Where a CAE is appointed the parties share the cost rather than bearing the whole burden of the fees payable to their own expert. In the present case, for example, the applicant will contribute only its share of the fees payable to the CAE retained to assess the impact of the development on the Grey-headed Flying Fox.

13 If no CAE was appointed the applicant and the council would respectively be responsible for the payment of fees payable to an expert separately retained. The Minister on the other hand would never incur the cost of engaging an expert witness to deal with that issue. He would simply ignore it, as would the applicant because in the absence of the council as a party the issue would not arise.

14 Notwithstanding the statement in cl 8 of the Court’s CAE Practice Direction that the parties are jointly and severally liable for the expert’s fees it is clearly only fair and reasonable that the parties who engage in the dispute in respect of the issue the CAE is appointed to address are the parties who incur that joint and several liability. Otherwise the other party who has no interest in the determination of that aspect of the case would be inadvertently liable for costs which are not of its making. In the interest of a consistent approach there should, as a general rule, be no distinction between a party who is joined as an objector and the necessary party who is named as a respondent in its capacity as the relevant consent authority. It could hardly be suggested that an objector who is joined to deal with one minor separate and distinct issue should thereby be liable to share in cost of CAEs appointed to deal with a potential plethora of issues contested between the other two parties. The equity and justice principle works both ways.

15 For all of the above reasons I am satisfied that justice is best served if the costs of a CAE are paid by the parties who contest the issue, unless there are special circumstances surrounding the appointment of the CAE that would cause the Court to exercise its undoubted discretion another way. There are no such special circumstances in this case. I therefore order that the costs of the CAE appointed to assess the impact of the development on the Grey-headed Flying Fox be the joint and several responsibility of the applicant and the second respondent. If and when a CAE is appointed to assist the Court with expert evidence in relation to the Green and Golden Bell Frog or Aboriginal Heritage and Archaeology I would expect that an order would be made in the same terms if the circumstances remain as they are at present.