Ryan v Northern Regional Planning Panel (No 5)

[2020] NSWLEC 101

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ryan v Northern Regional Planning Panel (No 5) [2020] NSWLEC 101

Hearing dates:

27 July 2020

Decision date:

27 July 2020

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See [46] of judgment

Catchwords:

COSTS – exercise of discretion to award costs where Applicant partially successful in judicial review and civil enforcement proceedings on one of three grounds – three interlocutory injunction applications unsuccessful – numerous amendments of summons resulting in removal of several grounds before the hearing

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Federal Court Rules 2011 (Cth) former O 62 r 15 (now FCR r 40.03)

Heritage Act 1977 (NSW)

Land and Environment Court Rules 2007 (NSW) r 4.2

National Parks and Wildlife Act 1974 (NSW)

Uniform Civil Procedures Rules 2005 (NSW) Pt 42 (rr 42.1, 42.7)

Cases Cited:

Commonwealth of Australia v Gretton [2008] NSWCA 117

Latoudis v Casey (1990) 170 CLR 535; [1990] HCA 5918

Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21

Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168

O’Keefe Nominees v BP Australia (1995) 55 FCR 591

Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55

Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40

Turkmani v Visalingam (No 2) [2009] NSWCA 279

Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

Category:

Costs

Parties:

Michael Ryan (Applicant)
Northern Regional Planning Panel (First Respondent)
Lismore City Council (Second Respondent)
Winten (No 12) Pty Ltd (Third Respondent)
W A Sexton (Fourth Respondent)
Glorbill Pty Ltd (Fifth Respondent)

Representation:

COUNSEL:
M Hall SC (Applicant)
Submitting appearance (First Respondent)
Submitting appearance (Second Respondent)
J McKelvey (Third Respondent)
Submitting appearance (Fourth Respondent)
Submitting appearance (Fifth Respondent)

SOLICITORS:
A Oshlack, agent (Applicant)
Department of Planning (First Respondent)
McCartney Young Lawyers (Second Respondent)
Dentons (Third to Fifth Respondents)

File Number(s):

19/6908

EX TEMPORE Judgment

1. The Applicant commenced judicial review and civil enforcement proceedings which I determined in Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan No 4). I considered three grounds of review or appeal. The Applicant was successful in relation to one of these as I found that a species impact statement (SIS) was required to be lodged for the Third Respondent’s Winten (No 12) Pty Ltd (Winten) development application for a large residential subdivision, and none was prepared. The development site is located on the North Lismore Plateau (the site). A breach of the Environmental Planning and Assessment Act 1979 (NSW) therefore occurred. I declared development consent No 2017/270 granted on 17 October 2018 invalid, void and of no effect on 29 May 2020. The only active respondent was Winten. The issue of costs now arises for determination.

2. The Applicant seeks an order that Winten pay the Applicant’s costs including numerous reserved costs of interlocutory proceedings in a gross sum to be determined by the Court. Winten seeks different orders that:

1.   The Third Respondent to pay the Applicant [sic] costs, as agreed or assessed:

(a)   Following the filing of the Summons, as amended, on 20 December 2019; and

(b)   Of the Applicant’s application for an interlocutory injunction sought by way of Notice of Motion filed on 25 November 2019.

2.   The Applicant is to pay the Third Respondent’s costs, as agreed or assessed:

(a)   Of the Applicant’s application for an interlocutory injunction sought by way of Notice of Motion filed on 28 February 2019.

(b)   Of the Applicant’s application for an interlocutory injunction sought by way of Notice of Motion filed on 30 October 2019.

(c)   Those costs of the Third Respondent thrown away by reason of the Applicant’s amendments to the Summons as sought by way of Notices of Motion filed on 9 April 2019 and 25 November 2019.

3.   Otherwise no order as to costs.

3. Winten clarified that it seeks costs thrown away by the substantial amendments of the Applicant’s summons leading up the notice of motion of 25 November 2019 heard on 20 December 2019. As a result of that motion the summons was amended to identify only two issues which were heard at the substantive hearing, the SIS ground and the inferred gravesite ground concerning a breach of the Heritage Act 1977 (NSW), becoming the “Third Further Amended Summons” dated 19 November 2019. An additional ground was subsequently added being the third ground of whether the construction certificate (CC) authorised work for which development consent had been obtained, becoming the final Third Further Amended Summons filed on 20 December 2019. This ground had been included in an earlier version of the summons. Effectively Winten seeks costs thrown away by amendments of the summons up to 19 December 2019 following which the final version of the summons to be determined at the substantive hearing was finalised. It does not seek the costs of the motion dated 25 November 2019.

Agreed Chronology relevant to costs

4. The parties helpfully agreed the following “Chronology” (tabbed documents omitted):

Chronology of the proceedings

1.   On 17 October 2018 Development Application 2017.270 was approved.

2.   The proceedings were commenced by the Applicant on 7 January 2019 by way of Summons. The Summons filed 7 January 2019 is tab 1.

3.   Solicitors for the Third Respondent informed the Applicant of the misdescription of that party. An amended summons was filed by the Applicant on 5 February 2019 correcting the name.

4.   On 8 February 2019 a submitting appearance was filed by the Second Respondent (Lismore City Council).

5.   On 27 February 2019 the Applicant lodged with the Court a letter appointing Mr Oshlack as his agent and indicating that Rule 7.7 had been complied with.

6.   On 4 March 2019 submitting appearances were filed by the First, Fourth and Fifth Respondents.

March 2019 Notice of Motion

7.   By Notice of Motion filed on 28 February 2019, the Applicant sought, inter alia, an interlocutory injunction against the Third Respondent, on Aboriginal cultural heritage grounds. The Notice of Motion filed by the Applicant is at tab 2.

8.   Robson J declined to grant the injunction. The decision of Robson J is Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21 and is at tab 3.

9.   Costs of the Notice of Motion were reserved.

10.   Robson J also granted leave to the Applicant to rely on an amended Summons subject to the exclusion of one new paragraph (paragraph 12). The amended Summons had in fact been filed on 28 February 2019. The amended Summons is at tab 4.

11.   Mr Clay SC appeared for the Third Respondent and Ms Saw appeared for the Applicant.

Notice of Motion to set aside Notice to Produce

12.   On 5 April 2019 the Third Respondent filed a Notice of Motion seeking, inter alia, to set aside a Notice to Produce served by the Applicant on 6 March 2019.

13.   The Notice of Motion was returnable before Pain J on 13 May 2019. The Third Respondent did not press the Motion.

14.   Documents were produced in accordance with the Notice to Produce on 17 May 2019.

May 2019 Notice of Motion

15.   On 9 April 2019, the Applicant filed a Notice of Motion seeking, inter alia, leave to rely on a further amended Summons in the form annexed to the Notice of Motion and to compel the Third Respondent to permit access to the site for the Applicant’s expert. The Notice of Motion filed by the Applicant is at tab 5.

16.   The Notice of Motion was heard by Pain J on 13 May 2019. A transcript of the hearing is at tab 6. Pain J granted parts of the relief sought in the Motion.

17.   Costs of the Notice of Motion were reserved.

18.   Mr Clay SC appeared for the Third Respondent and Ms Saw appeared for the Applicant.

19.   Following the decision of Pain J, an amended Summons was filed on 17 May 2019 and is at tab 7.

Defence

20.   On 19 June 2019 the Third Respondent filed its Response to Further Amended Summons (tab 8).

October 2019 Notice of Motion

21.   On 30 October 2019, the Applicant filed in Court a Notice of Motion seeking, inter alia, an interlocutory injunction against the Third Respondent on the basis of (i) absence of a species impact statement dealing with the threatened bats; and (ii) flood risk. The Notice of Motion is at tab 9.

22.   On 30 October 2019 the Third Respondent gave an undertaking, until hearing of the Motion, to cease all development work.

23.   Robson J declined to grant the injunction after hearing the application on 31 October 2019 and also an application to re-open on 1 November 2019.

24.   Robson J delivered judgment on 1 November 2019 in Michael Ryan v Northern Regional Planning Panel (No 2) [2019] NSWLEC 167 and Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168. The decisions are at tabs 10 and 11.

25.   Mr Beasley SC appeared for the Third Respondent on this Notice of Motion and Ms Saw appeared for the Applicant.

26.   Costs of the Notice of Motion were reserved.

November 2019 Notice of Motion

27.   On 25 November 2019, the Applicant filed a Notice of Motion seeking, inter alia, an interlocutory injunction against the Third Respondent and leave to further amend the Summons. The Notice of Motion is at tab 12.

28.   The proposed amended Summons was annexed to an affidavit of Alan Oshlack affirmed 22 November 2019 which is at tab 13.

29.   Moore J heard the Notice of Motion on 28 November 2019 and 2 December 2019. The transcript of the hearing before Moore J is at tab 14.

30.   The proposed amendments to the Summons were consented to by the Third Respondent and Moore J granted leave to rely on the amended Summons on 28 November 2019. The amendments greatly reduced the number of issues in contention.

31.   During the course of hearing the application, the Applicant sought, by way of further Notice of Motion, leave to rely instead on a further amendment to the Summons which more closely reflected the May 2019 Summons.

32.   By order on 2 December 2019, Moore J allowed two paragraphs of that amended Summons but otherwise refused leave to further amend the Summons.

33.   The Third Respondent provided a series of undertakings to the Court which are at tab 15. The Court accepted the undertakings and the application for an injunction was dismissed.

34.   Moore J delivered an ex tempore judgment on 2 December 2019. An application for the transcript of the judgment has been made by representatives for the Third Respondent.

35.   Costs of the Notice of Motion were reserved.

36.   Ms McKelvey appeared for the Third Respondent on this Notice of Motion and Mr Oshlack appeared for the Applicant.

37.   The Summons the subject of the leave granted by Moore J on 28 November 2019 (and the further order of 2 December 2019 allowing two additional paragraphs) was filed on 20 December 2019. This is at tab 16.

38. This was the Summons the subject of the final hearing before Pain J commencing 10 February 2020 (except to the extent that an alternative claim of breach of section 86 of the National Parks and Wildlife Act 1974 was not pressed at hearing).

Final hearing

39.   The hearing of the matter before Pain J was over six days – 10-14 and 17 February 2020.

40.   Mr Hall SC appeared for the Applicant and Mr Beasley SC with Ms McKelvey appeared for the Third Respondent.

41.   The hearing proceeded as follows:

(a)   Day 1 (10 February):

(i)   Opening - Mr Hall SC for the Applicant

(ii)   Opening - Mr Beasley SC for the Third Respondent

(b)   Day 2 (11 February):

(i)   Opening - Mr Beasley SC (continued)

(ii)   Evidence tenders

(iii)   Oral evidence – Dr Penny McCardle

(iv)   Oral evidence – Dr David Robertson and Mr David Milledge

(c)   Day 3 (12 February) – half day:

(i)   Oral evidence – Dr David Robertson and Mr David Milledge

(d)   Day 4 (13 February):

(i)   Closing submissions – Mr Hall SC

(e)   Day 5 (14 February):

(i)   Closing submissions – Mr Beasley SC

(f)   Day 6 (17 February) – half day:

(i)   Closing submissions in reply – Mr Hall SC

42.   The undertakings given to the Court on 2 December 2019 (see above) were continued by consent (in an amended form and as shown at tab 17)

5. Winten agrees that a substantial part of the Applicant’s costs ought to be paid by it, as reflected in its proposed orders which provide for the Applicant’s costs of the substantive proceedings to be paid by it inter alia. The Chronology identifies that three interlocutory injunction applications were made, all unsuccessful. The summons was amended on 28 February 2019 (minor only so that no issue arises in relation to this version), 9 April 2019 and 25 November 2019.

6. Remaining issues are (i) the reserved costs of two interlocutory hearings identified in the Chronology at pars 8 and 24; and (ii) costs thrown away by amendments of the summons arising from the 9 April 2019 version and leading up to the 25 November 2019 version (which reduced issues to two) and the 2 December 2019 version (which added the CC ground).

Legislation

Civil Procedure Act 2005(NSW)

7. Section 98 of the Civil Procedure Act 2005 (NSW) (CP Act) provides:

98   Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)    the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2)   Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3)   An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4)   In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—

(a)   costs up to, or from, a specified stage of the proceedings, or

(b)   a specified proportion of the assessed costs, or

(c)   a specified gross sum instead of assessed costs, or

(d)   such proportion of the assessed costs as does not exceed a specified amount.

…

Uniform Civil Procedure Rules 2005 (NSW)

8. Relevant rules of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR) provide:

Part 42 Costs

Division 1 Entitlement to costs

42.1   General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

…

42.7   Interlocutory applications and reserved costs

(1)   Unless the court orders otherwise, the costs of any application or other step in any proceedings, including—

(a)   costs that are reserved, and

(b)   costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2)   Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

Winten’s submissions

9. Winten asks for “some other order” under r 42.1 UCPR for part of the costs of the proceedings and to “order otherwise” under r 42.7 in relation to the reserved costs orders in relation to several interlocutory proceedings. The Applicant’s three applications for interlocutory injunctions were all unsuccessful in obtaining relief and the Applicant abandoned a number of grounds which caused Winten to incur substantial costs. While the Applicant only succeeded on one of three grounds of judicial review/appeal, Winten accepts that it should pay all the costs of the substantive hearing.

10. The March 2019 injunction (Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21 (Ryan No 1)) sought relief primarily relating to invalidity of the development consent on the basis of assessment of Aboriginal cultural heritage impacts (cultural heritage failures in consultation – Ground 8 of summons). That ground was abandoned before the hearing. Robson J was not persuaded the Applicant’s case was strong and dismissed the application. Costs were reserved. As the Applicant was unsuccessful, Winten would ordinarily be entitled in defending the application for an injunction to costs following the event.

11. The October 2019 injunction application (Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168) (Ryan No 3) was also declined. The basis for the injunction relied on was the flood risk of construction work and the failure to carry out a SIS in relation to several microbat species. The flood risk ground was abandoned prior to hearing. The number of microbat species the subject of the SIS claim was reduced to the eastern long-eared bat. Robson J did not find there was a serious question to be tried on the basis of the ecological evidence, at [50] (also see [53]), or the flood risk evidence. Winten should have its costs paid as the successful party.

Pleading amendments and abandonment of issues

12. The Applicant sought leave to amend the summons on three occasions:

1. 28 February 2019;

2. 9 April 2019; and

3. 25 November 2019.

13. The summons as filed on 7 January 2019 raised the following issues in relation to the assessment of the development application:

1. Compliance with State Environmental Planning Policy No 44—Koala Habitat Protection (SEPP 44) (Grounds 1-3).

2. Assessment of five microbat species (Ground 4).

3. Assessment of flora species (Ground 5).

4. Consideration of offsetting of habitat for two additional fauna species and offsetting loss of a flora species (Ground 6).

5. Uncertainty of the consent (Grounds 7).

6. Consultation on Aboriginal cultural heritage matters (Ground 8).

7. Breaches of the Heritage Act and National Parks and Wildlife Act1974 (NSW) by reason of the destruction of the inferred grave (Ground 9).

8. The assessment of “culturally significant stone walls” on the site (Ground 10).

9. Consent of Council as owner of land (Ground 11).

14. The summons as filed on 7 January 2019 did not challenge the validity of the CC for bulk earthworks on any grounds or seek any final orders in respect of it.

15. The application for leave to amend the summons filed on 28 February 2019 (and determined orally by Robson J on 6 March 2019 as part of the motion for injunction discussed above) did not seek to make significant amendments. The Applicant sought to add an additional ground of challenge in relation to uncertainty of the development consent, but Robson J declined to allow this amendment (Chronology at par 10).

16. Costs in relation to the “Further Amended Summons” were reserved.

17. The application for leave to amend the Further Amended Summons filed on 9 April 2019 (and determined by Pain J on 13 May 2019) resulted in significant amendments to the Further Amended Summons but the issues in contention broadly remained. Additional grounds of challenge were added in relation to the validity of the CC (Grounds at pars 12 and 13 (Further Amended Summons 16 May 2019 for which leave was ultimately given by Pain J at Chronology, tab 7) and the assessment of flood risk (Grounds at par 14 Further Amended Summons 16 May 2019 for which leave was ultimately given by Pain J at Chronology, tab 7). Costs of the notice of motion, including in relation to the amendment, were reserved (Tcpt 13 May 2019, p 40(50) (Chronology, tab 6)). Pursuant to the leave of Pain J, the Further Amended Summons 16 May 2019 was filed on 17 May 2019 (Chronology, tab 7).

18. An amendment to the Further Amended Summons 16 May 2019 was sought by way of notice of motion filed by the Applicant on 25 November 2019 (Chronology, tab 12). The proposed amendment saw the abandonment of a number of the grounds of challenge (Annexure A Affidavit Alan Oshlack 22 November 2019 at Chronology, tab 13). The following issues were proposed to longer be in contention:

1. Compliance with SEPP 44 Koala Protection (Grounds at pars 1-3).

2. Whether a species impact assessment was required for any flora or fauna species other than the eastern long-eared bat or white-eared monarch.

3. The condition of consent requiring offsetting of red gums (previous Grounds at par 6).

4. Uncertainty of the consent (previous Grounds at par 7).

5. Consultation on Aboriginal cultural heritage matters (previous Grounds at par 8).

6. Consent of Council as owner of land (previous Grounds at par 11).

7. The validity of the CC (previous Grounds at pars 12 and 13).

8. Assessment of flood risk (previous Grounds at par 14).

19. Leave was granted by Moore J to the proposed amendment on 28 November 2019 (Tcpt 28 November 2019, p 29(38-42). This left two issues in contention: whether an SIS was required, and the issue of the destruction of an inferred grave.

20. During the course of hearing the application to amend (which coincided with the Applicant’s third application for an interlocutory injunction), the Applicant sought, by way of further oral notice of motion, leave to rely instead on a further amendment to the summons which, essentially, reinstated the terms of Further Amended Summons 16 May 2019. Moore J allowed the reinstatement of two paragraphs of the Further Amended Summons 16 May 2019 (relating to the challenge to the CC and the borrow pit and haul road (previous Grounds at pars 12 and 13) but otherwise refused leave to further amend the summons (Tcpt ex tempore judgment not yet available).

21. The Third Further Amended Summons 19 November 2019 was ultimately filed in accordance with the leave given by Moore J on 20 December 2019. That is the version of the summons that was considered at hearing (albeit that the allegations made in respect of the National Parks and Wildlife Act were not ultimately pressed (Ryan No 4 at [4], [250])).

22. Winten’s “Response to Further Amended Summons” (as filed 17 May 2019), which was filed on 19 June 2019 (Chronology, tab 8), demonstrates the effort that went into responding to the issues which were abandoned prior to hearing, being:

1. SEPP 44 Koala Habitat Protection – par 4.

2. Biocertification – pars 15-18.

3. Aboriginal cultural heritage – pars 19-22.

4. Culturally significant stone walls – pars 30-33.

5. Consent on land – pars 34-36.

6. Conditions precedent to issue of CC – pars 37-40.

7. Flood risk – pars 43-44.

Findings in Ryan No 4

23. The hearing took six days and at least half was spent on the SIS issue.

Discretion to award costs

24. It is acknowledged by Winten that the ordinary costs rule in this case is that it ought to bear the whole of the costs of the proceedings (under r 42.1), including the outstanding costs reserved orders (under r 42.7). It is also acknowledged that the Third Respondent bears the onus of establishing that a departure from the usual rule is appropriate in this case: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10].

25. However, the costs discretion of the Court under s 98 of the CP Act is wide and informs whether some other order under Pt 42 of the UCPR ought to be made. If considering a departure from the ordinary rule, the Court should have regard to the principles of fairness underlying the making of any costs order: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]; Turkmani v Visalingam (No 2) [2009] NSWCA 279 at [13].

26. As is evident when the history of this case is traversed (as outlined above), the case was the subject of a number of procedural and interlocutory applications brought by the Applicant – each of which substantially added to the cost of the proceedings of Winten. The Applicant amended its pleadings on five occasions (at least two of those applications involving substantial hearings) and only after almost a year into the proceedings reduced the issues to be litigated from a maximum of 11 issues (which were substantially amended twice) down to the three issues ultimately litigated.

27. In addition, the Applicant brought three injunction applications and failed each time. The judge reserved costs on each occasion. No suggestion can arise from such an order that the Applicant should get a costs order in his favour. The issue of costs was simply not considered by the judge determining the interlocutory applications.

28. It is submitted that the nature of the ultimate success of the Applicant in the proceedings (with relief being granted on a single ground) warrants some compensation of the unnecessary costs incurred by Winten as a result of the manner in which the Applicant ran his case. To the extent that the Applicant may argue that these proceedings were brought in the public interest (albeit that r 4.2 of the Land and Environment Court Rules 2007 (NSW) only applies where an applicant is unsuccessful), such an argument would not cure the complaint Winten makes about the procedurally cumbersome and inefficient way the proceedings were run for almost a year. The costs order sought by Winten only seeks compensation for additional costs incurred in relation to issues not ultimately litigated.

29. Alternatively, each party should pay their own costs of the interlocutory motions. No costs order in favour of the Applicant should be made in relation to these.

Applicant’s submissions

30. The operation of the presumption in r 42.7 (in the context of the Federal Court Rules 2011 (Cth) (FCR) O 62 r 15 now FCR r 40.03) was considered by Spender J in O’Keefe Nominees v BP Australia (1995) 55 FCR 591 at 598 (O’Keefe Nominees) to the effect that it is the primary outcome of the proceedings which also guides the costs of interlocutory matters. Winten is not “ordinarily entitled to its costs” of the interlocutory applications, the presumption suggests the opposite.

Interlocutory injunction applications (March 2019, October 2019)

31. The judge hearing the two applications (Robson J on both occasions) had, of course, the power to make an order for costs. His Honour would have been in a more comfortable position than the Court is now to assess the matters that can, in proper cases, make it appropriate to award costs of an interlocutory step against one party, such as severability of the issues argued from the main hearing, or the reasonableness of the parties’ conduct. His Honour did not do so. He must be presumed to have been aware of the operation of UCPR r 42.7 and have intended by his order that those costs would be awarded to the party who was successful in the proceedings overall. Winten offers no explanation as to why it did not seek the order it now seeks when the matter was before Robson J or, if it did make the application then (clearly there was no argument addressed to costs in October: Ryan No 3 at [70] – the position in March is not disclosed), why the Court now could or should arrive at a different decision. In effect, Pain J is being asked, with less information and without the advantage of having heard the interlocutory applications, to do what Robson J either declined to do or was not asked to do.

32. Robson J found there was a serious question to be tried in relation to cultural significance. He did not grant an injunction because of the balance of convenience. While some aspects of the Aboriginal heritage case were no longer pressed, it does not mean the Applicant should be punished by a costs order against it. In the second interlocutory application heard in March 2019 Robson J found there was a serious question to be tried and the reason why the Applicant was bringing the urgent application. While some aspects of the Aboriginal cultural heritage case relied on were later not relied on, to award costs would be a perverse incentive. There is no suggestion that the Applicant had not properly brought the injunction applications in Ryan No 1 and Ryan No 3.

33. If the Court is re-exercising the costs discretion, the affidavit Mr Oshlack sworn 27 February 2019 discloses the lengths he went to ascertain Winten’s plans to do work on the site.

Amending the summons, costs thrown away

34. Costs were reserved on the two motions to amend the summons in April 2019 and November 2019. Winten has not demonstrated that it has incurred more than miniscule costs as a result of the Applicant’s amendments of the summons.

35. Ordering costs as against the Applicant for costs thrown away would act as a perverse incentive not to refine a case if costs are ordered in such circumstances.

Overall approach

36. Finally, and very much as a second best alternative, the Applicant submits that Winten's proposed approach of off-setting costs orders on different aspects of the case is unnecessary and inappropriate, locking the parties into a protracted costs assessment exercise. That exercise would be a complex one, with much room for dispute over what item of cost belonged in what basket, and how costs attributable to multiple issues were to be apportioned. The preferable modern approach, if the Court is persuaded that any of the points made by Winten warrant a special costs order, is to apply a percentage reduction in the costs recovered by the Applicant. At most in this case that would be a small reduction, so that the Court might order that Mr Ryan recover, say, 90 per cent of his costs of the proceeding. Such an order is administratively simple, and much more likely to permit the parties to agree on quantum without the need for a full costs assessment.

Consideration

37. The costs discretion under s 98, with guidance provided in r 42.1 that costs follow the event and r 42.7 in relation to interlocutory matters, is wide. Rule 42.7 states that unless the Court orders otherwise, costs in interlocutory proceedings where costs are reserved are to be dealt with in the same way as the general costs of the proceedings. As identified in O’Keefe Nominees relied on by the Applicant, it is not necessarily the case that costs of interlocutory proceedings should follow the outcome of those applications but rather the outcome of the substantive litigation should guide the outcome on interlocutory applications. The rule is not fixed and provides for an otherwise order to be made. Costs are compensatory not punitive: Latoudis v Casey (1990) 170 CLR 535; [1990] HCA 59. I do not accept the Applicant’s submissions that ordering some of Winten’s costs be paid in relation to interlocutory matters where it was successful and has incurred costs is punishment where the circumstances suggest that such an order is reasonable. The Chronology identifies an extensive number of interlocutory applications – three interlocutory injunction applications all unsuccessful and three applications to amend the summons specifying the Applicant’s case. That is an inordinately large number of interlocutory applications in proceedings in this Court. Winten has agreed to pay the Applicant’s costs of one injunction application where the Applicant was unsuccessful.

Interlocutory injunction applications

38. In relation to the interlocutory injunction applications, it is clear from the judgments in Ryan No 1 and Ryan No 3 that the presiding judge was not asked to determine costs by either party. The costs reserved order made on each occasion does not disclose any exercise of discretion by the judge and indeed is an essentially neutral order. No further guidance can be gleaned from these decisions in relation to how the presiding judge might have exercised his costs discretion, contrary to the Applicant’s submissions.

39. In Ryan No 1 I have the benefit of a judgment providing reasons to consider whether in the overall context of the proceedings Winten should have its costs paid. Mr Oshlack’s communications with Winten prior to filing the first interlocutory proceedings are immaterial to this consideration. I agree with Winten’s submission that an otherwise order is justified in its favour in relation to the first interlocutory injunction application given that the application was unsuccessful and the primary ground on which it was based, being the Aboriginal heritage consultation ground, was not pressed at the final hearing. These circumstances justify the making of an otherwise order that Winten’s costs of that application be paid by the Applicant.

40. In relation to the second interlocutory injunction application (Ryan No 3) two bases were relied on by the Applicant likely impact on various microbat species requiring an SIS and flood risk. The flood risk ground was ultimately abandoned. The number of microbat species the subject of the summons and the evidence at the interlocutory hearing was much greater than the one species relied on in the SIS ground at the final hearing. It is also appropriate to exercise my discretion to make an otherwise order that Winten’s costs of this application be paid by the Applicant.

Multiple amendments of summons

41. As identified by Winten, the original summons identified nine issues and 11 grounds of review/appeal. Winten’s submissions set out at [12]-[21] above accurately reflect the numerous occasions on which the Applicant sought to make changes to the summons, and the extent of changes sought. The Third Further Amended Summons considered at the final hearing had three grounds. I do not accept the Applicant’s submission that the amount expended by Winten in responding to those changes must have been miniscule. The grounds were wide-ranging and would have required extensive consideration of a large number of matters, as is clear from Winten’s Response to Further Amended Summons attached to the Chronology. It is undesirable in a costs application that a party have to marshall evidence of its expenditure, which is generally a matter for taxation if the parties are unable to come to an agreement about costs.

42. The usual approach where a summons is amended is that costs thrown away are payable. The Applicant submitted that his status as public interest applicant on behalf of his community should be taken into account. The Chronology discloses that he was represented by junior counsel at all interlocutory stages but for the November 2019 notice of motion, about which there is no dispute. There is no reason not to make such an order in Winten’s favour in this case.

43. I reject the Applicant’s submission that to award costs where it is reasonable to do so in this case creates a perverse incentive that a party not refine its case early in proceedings. It is clearly not in a party’s interest overall to continue pursuing unmeritorious claims which may result in greater costs orders against him or her at a later stage in proceedings.

44. As to the form of order, I consider it is desirable to minimise dispute about the amount of costs as the Applicant urged. Making an order that Winten pay a percentage of the Applicant’s costs is the most efficient approach in my view. I am mindful of Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6]-[7] stating to the effect that where there has been a mixed outcome in the proceedings and apportionment of costs is appropriate, a broad-brush approach is desirable.

45. I also note that Winten has agreed to pay all the costs of the Applicant of the substantive hearing when the Applicant was successful on one of the three grounds pressed. While the SIS ground was the most substantial, I consider Winten would have been well within its rights to argue it should not have to pay all those costs as the Heritage Act ground in particular took some Court time and required the consideration of expert evidence.

46. Doing the best I can, I consider that Winten should be liable for 60 per cent of the Applicant’s costs of these proceedings. How best to give effect to such an order will be discussed with the parties.

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Decision last updated: 30 July 2020