Sales-Cini v Wyong City Council - [2009] NSWLEC 201

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Sales-Cini v Wyong City Council [2009] NSWLEC 201

PARTIES:
PLAINTIFF
Wayne Sales-Cini
FIRST DEFENDANT
Wyong City Council
SECOND DEFENDANT
Wadalba Central Developments Pty Limited
THIRD DEFENDANT
Westminster Development Pty Limited

FILE NUMBER(S): 40471 of 2009

CORAM: Pepper J

KEY ISSUES: COSTS :- security for costs - discretionary principles for ordering security for costs - impecunious plaintiff - proceedings brought under open standing provision - proceedings not in public interest - security for costs ordered

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 91(2), 123
National Parks and Wildlife Act 1974 ss 90, 176A

CASES CITED: Burrell Place Community Action Group Incorporated v Griffith City Council [2009] NSWLEC 120
Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214
Donnelly & Mundine v Ross Mining N1 [1999] NSWLEC 76
Kennedy v Director-General of the Department of Environment and Conservation [No. 2] [2007] NSWLEC 271
Reid’s Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171
Sales-Cini v Wyong City Council [2009] NSWLEC 1388

DATES OF HEARING: 23 November 2009

EX TEMPORE JUDGMENT DATE: 24 November 2009

LEGAL REPRESENTATIVES:
PLAINTIFF
Mr A Oshlack (agent)
SOLICITORS
Indigenous Justice Advocacy Network
SECOND & THIRD DEFENDANTS
Mr S Griffiths (solicitor)
SOLICITORS
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

24 November 2009

40471 of 2009 Wayne Sales-Cini v Wyong City Council & Ors

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: Before the Court is a notice of motion filed on behalf of the second and third defendants (identified specifically as such in the pleadings. To avoid confusion I shall continue with this nomenclature) in Class 4 proceedings. The first defendant, Wyong City Council (“the council”), has filed a submitting appearance only in the proceedings and is not a party to the notice of motion.

2 The notice of motion filed on 28 October 2009 seeks that:

(a) the plaintiff (the respondent to the motion), Mr Wayne Sales-Cini, give security for costs of the second and third defendant to the satisfaction of the Registrar;

(b) the proceedings be stayed until the Court is satisfied that such security has been given;

(c) if the security referred to in orders 1 and 2 is not provided by 27 November 2009 the summons is to be dismissed with costs; and

3 The amount of security sought by the second and third defendant is not quantified but has been left to the discretion of the Court.

4 The order for security for costs is opposed by the plaintiff (again, specifically identified as such in the summons and points of claim). At the hearing of the notice of motion, Mr Sales-Cini was not legally represented but was represented by his agent, Mr Alan Oshlack, who although not legally qualified has considerable experience litigating in this Court.

5 For the reasons that follow, security for costs is to be paid by the plaintiff fixed in the sum of $15,000. I also order that the proceedings are to be stayed until the Court is satisfied that the security has been provided by the plaintiff. However, the time period within which the security is to be paid as sought by order 3 of the notice of motion is extended. Accordingly, if the security referred to above is not provided by the plaintiff by 4.30pm 8 February 2010, the summons is dismissed.

Factual Background

6 The third defendant, Westminster Development Pty Ltd, is proposing development of residential housing lots with associated infrastructure to the south of Wadalba Hill in New South Wales. The area assessed is bounded by the Wadalba Hill Wildlife Corridor to the north, Louisiana Road to the east, Johns Road to the south and existing development along Orchid Way to the west.

7 In March 2009, the first defendant, the council, approved development application 59/2007 (“the DA”) for a 20 lot subdivision of land at Wadalba Hill comprising 12 residential lots, four residue lots and four special use lots.

8 A number of previous Aboriginal cultural heritage assessments by consulting archaeologists, Aboriginal site officers and the Department of Environment, Climate Change and Water (“DECCW”) have identified sites of Aboriginal cultural significance in the area. These have been registered with the Aboriginal heritage information management system run by DECCW and are to be protected from development impact in the areas covered by a wildlife corridor and other public reserves.

9 In the principal proceedings before the Court the plaintiff seeks orders that the Court set aside the development consent on the basis that the council failed to consider the impact on Aboriginal sites or objects on the subject land. Furthermore, the plaintiff says that the subdivision will breach the National Parks and Wildlife Act 1974 (“the NPW Act”) by causing damage to, or destruction of, Aboriginal objects.

10 Points of claim were filed by the plaintiff on 9 September 2009. The substance of the proceedings is for judicial review of the development consent granted and for declaratory and injunctive relief. The points of claim essentially set out seven grounds of review. These are:

(a) “the first respondent failed to treat the development as ‘integrated development’ as defined under s 91A(2) of the EP&A Act by granting consent without obtaining the general terms of approval from the Department of Environment and Climate Change under s 90 of the National Parks and Wildlife Act 1974 as set out in the table of s 91(1) of the EP&A Act”;

(b) “further or in the alternative the determination is void as the requirement to obtain the general terms of a consent under s 90 of the NPWS Act, if cultural objects are to be impacted is a jurisdictional fact”;

(c) “the first respondent had failed to consider mandatory relevant matters pursuant to s 79C(1)(d) in relation to submissions on Aboriginal cultural heritage”;

(d) “further or in the alternative pursuant to s 79C(1)(b) the first respondent failed to consider adverse impacts on Aboriginal sites and objects on the land or place any ameliorating conditions to lessen the impact by monitoring or salvage”;

(e) “further the first respondent had failed to consider the proximity of the development to an area associated with a massacre and/or burial which the third respondent had exposed and covered over on the adjacent land without reporting the find to relevant authorities”;

(f) “further or in the alternative the third respondent had failed to properly inform the first respondent in relation to the find of human remains on the adjacent land”; and

11 The second and third defendants deny the plaintiff’s claims and say that the subdivision is only a small part of the wide urban release area which has been the subject of intensive analysis over the past 15 years by DECCW, the Department of Planning and the council.

12 They contend that the subject land was assessed for items and places of Aboriginal heritage and reported upon by an independently appointed archaeologist, Ms Mary Dallas, in 2000. Only one potentially relevant site, a grinding groove or axe grinding site was identified on the subject land.

13 The Dallas report was supported by the Darkinjung Local Aboriginal Land Council.

14 The grinding groove site is to be preserved within a special use lot forming part of a drainage reserve, namely, the retention of the natural creek line. This is consistent with the overall strategy in relation to the wider parcels of land, which has included the protection of Aboriginal objects by the creation of a wildlife corridor and a park.

15 Moreover, when the specific subdivision application came before the council, Ms Dallas provided an updated report in 2007 and subsequently, at the request of DECCW, a further archaeologist’s report was prepared by Mr Oliver Brown and paid for by the council.

Procedural History

17 It is useful to set out some of the procedural history of this matter. The plaintiff commenced the proceedings on 10 July 2009. On 7 August 2009, the Court directed the plaintiff to file all evidence upon which he relied, except for an archaeologist’s report, by 3 September 2009. No evidence was filed by the plaintiff in compliance with this order.

18 Then by consent on 11 September 2009, the plaintiff and his archaeologist were granted access to the site for an inspection to take place on 14 October 2009. The plaintiff was also directed to file an affidavit showing the alleged location of significant sites by 9 October 2009, and to file any other evidence, apart from expert evidence, upon which the plaintiff relied by 2 October 2009. Further, the parties were directed to file a joint expert report by 23 October 2009.

19 On 6 October 2009, Mr Wayne Sales-Cini filed an affidavit showing the location of the claimed significant sites. No other evidence has been filed by the plaintiff and this affidavit represents the totality of his evidence.

20 Neither the plaintiff, nor any expert or any other representative on behalf of the plaintiff, attended the inspection on 14 October 2009. While the plaintiff states that this was because of, first, a dispute between his archaeologist, Mr David Johnson, and that of the second and third defendant, Mr Oliver Brown, over the perceived objectivity of Mr Brown, and second, the plaintiff’s desire to have additional persons in attendance contrary to the Court orders, no attempt was made by the plaintiff to relist the matter before the Court to raise these matters or to set an alternate date for the inspection.

21 An inspection of the sites identified by the applicant as having cultural significance therefore took place by specialists engaged by the second and third defendants only on 14 October 2009. The specialists were:

(a) Mr Oliver Brown, an archaeologist from Oliver Brown Consulting Archaeology;

(b) Mr Russell Kingdom, an arboriculturalist from Advanced Tree Consulting;

(c) Ms Tracy Howie from the Guringai Tribal Link Aboriginal Corporation; and

22 The results of the inspection are contained in a report attached to the affidavit of Mr Oliver Brown. The assessment of Mr Brown is that the only site of Aboriginal cultural significance on the subject land is that previously identified as the grinding groove or axe grinding site. It was recommended that the site be preserved within the corridor of a drainage reserve.

Evidence of the Second and Third Defendant

23 The second and third defendant relied on four affidavits in support of the motion:

(a) the affidavit of Ms Amy O’Callaghan sworn 21 October 2009;

(b) the affidavit of Mr Oliver John Foreman Brown sworn 21 October 2009;

(d) the affidavit of Mr Andrew Simpson sworn 28 October 2009.

24 Ms Amy O’Callaghan is an employed solicitor of Pikes Lawyers, who represent the second and third defendants. In her affidavit she deposed to the fact that:

(a) these proceedings were not dissimilar to earlier proceedings brought by the same plaintiff in a similar form relating to land in close proximity to the land the subject of the current proceedings. By consent the earlier proceedings were dismissed;

(b) in the current proceedings, pursuant to an order made by the Court on 11 September 2009, the plaintiff and his consulting archaeologist were permitted access to specified sites on the land for the purpose of an inspection. The access was to take place in the presence of representatives of the second and third defendants. A time was set for the inspection that was convenient to all interested parties including the plaintiff’s consulting archaeologist, an arborist and representatives of the Darkinjung Local Aboriginal Land Council; however,

25 Ms O’Callaghan was not required for cross examination by the plaintiff.

26 The affidavit of Mr Oliver Brown deposed to the fact that all 32 sites claimed by Mr Sales-Cini to be the subject of adverse and detrimental impact by the development were inspected and none, with the exception of the grinding groove site, were found to represent Aboriginal cultural heritage sites under the NPW Act. It was his recommendation that no further Aboriginal cultural heritage assessment was required.

27 Mr Oshlack cross examined Mr Brown in order to demonstrate that he was in someway biased against the plaintiff, was not an impartial expert and that therefore his evidence could not be received as expert evidence, or at all.

28 In my view, the cross examination failed to demonstrate any impartiality on the part of Mr Brown. Moreover, while the plaintiff may disagree with the conclusions expressed by Mr Brown in his report based on the inspection of the sites by him identified by the plaintiff, this is not a sufficient basis upon which a claim of bias may be founded. An allegation of bias is serious, particularly when made against an expert giving evidence. In the absence of any evidence whatsoever to support it, it is categorically rejected by me.

29 Mr Timothy Shelley, a senior town planner employed by ADW Johnson deposed to the following:

(a) that the Statement of Environmental Effects produced by Johnson Partners (now ADW Johnson) referred to an earlier Aboriginal archaeological assessment of Dr Pawel Gorecki and Ms Mary Dallas in 2000 (“the Dallas Report”) which showed that the riparian zone to the west of the subject land was an area of archaeological potential in which three items of Aboriginal significance were identified. These were:

(i) an axe grinding rock to the west of the watercourse;

(ii) a canoe tree; and

(iii) a scar tree; however,

(b) the canoe tree and scar tree were found not to be located on the subject land but instead on land to be dedicated by the council as a public reserve as part of the adjoining subdivision;

(c) that the axe grinding rock was located within a residue parcel of land identified on the plan and endorsed by council under the DA. The rock was to be located within a drainage reserve to be created as part of the future subdivision;

(d) that no other sites or areas of archaeological significance were identified on the subject land;

(e) that because council required verification of the Dallas Report in addition to a more recent endorsement from the Darkinjung Local Aboriginal Land Council, on or about 11 July 2007, Ms Mary Dallas produced a four page letter which confirmed the conclusions of the Dallas Report and dispelled claims made in objections to the DA received by the council that additional sites of Aboriginal significance existed on the subject land. The letter also documented further discussions with the Darkinjung Local Aboriginal Land Council who confirmed their endorsement of the findings of the original Dallas Report;

(g) that on or about January 2009, Total Earth Care provided a draft report which related to the area and included the subject land (“the draft Total Care report”);

(h) that on 15 January 2009, the Development Assessment Panel (“DAP”) reviewed an assessment report by the council’s planning officer which recommended that the application be approved. The DAP endorsed the recommendation and noted the findings of the draft Total Care report which confirmed that the scar trees, axe grooves and canoe tree surveyed were not within the subject site;

(i) that, however, the draft Total Care report did identify an axe groove grinding site within a watercourse on the subject land and stated that it should be preserved within a future drainage corridor in its natural state. The draft report also provided guidance for the protection of the axe grinding site from development pressures by suggesting a buffer of 20 m. The council subsequently amended the subdivision plan to achieve a 50 m buffer;

(j) that on 24 February 2009, the DA was referred to the Development Management Panel which resolved that the DA be approved and endorsed the proposed conditions of consent and referred the DA to council; and

39. If Aboriginal engravings or relics are unearthed during construction, all work is to cease immediately and the National Parks and Wildlife Service must be notified. Works may only recommence following endorsement for such from the National Parks and Wildlife Service.

30 Mr Shelley was not required for cross examination.

31 Mr Andrew Simpson deposed in an affidavit sworn 28 October 2009, that he is also a solicitor employed at Pikes Lawyers. Mr Simpson stated that he was admitted as a solicitor on 20 July 1990, and has approximately 19 years experience.

32 Mr Simpson stated that in his experience the matter would take at least two days of hearing before the Court based on the evidence presently filed. On this basis, he estimated the likely party party costs (exclusive of GST) of Pikes Lawyers, would be approximately $30,050.

33 In addition, he estimated that the evidence of town planning experts would cost approximately $9,130 (exclusive of GST) and that the evidence of the consultant archaeologist, Mr Oliver Brown, would cost approximately (based on an estimate provided to him by Mr Brown) $4,843 (exclusive of GST). Thus he estimates the likely party party costs (exclusive of GST) and disbursements of the matter if it proceeded would be approximately $44,023.

34 Again, Mr Simpson was not required for cross examination.

Evidence of Plaintiff

35 The plaintiff relied on an affidavit sworn by himself on 2 October 2009. In his affidavit he deposed to the following matters:

(a) that he is a traditional owner of the Darkinjung nation whose family started the Darkinjung Local Aboriginal Land Council;

(b) that he has been given the knowledge through his elders and his father that the place known as Wadalba Hill is significant to the Darkinjung people;

(c) that his knowledge of the subject land is the result of having lived in Wyong his whole life with other members of the Darkinjung nation and participating in traditional activities with members of his family;

(d) that on Wadalba Hill, including the land proposed to be developed, there are a large number of important Aboriginal sites to the Darkinjung people. The plaintiff has visited these sites on a number of occasions from age 11 to the present;

(i) two shield removals used by Darkinjung warriors;

(ii) a number of grinding rocks used for ochre preparation;

(iii) a water hole used for cleaning;

(iv) possible tool scatter;

(v) several grinding rocks and rock fire places/ovens;

(vi) a number of food bowls;

(vii) a medicine bowl complex which included a rare medical oil production rock; and

(f) that many of his ancestors were slaughtered during the William Cape massacre which occurred in 1832 on the proposed development site. He further stated that the remains of his ancestors were buried near the site;

(g) that human remains have been located nearby to the subject land; and

(h) that he was excluded from archaeological surveys undertaken by the developers and the council.

36 Mr Sales-Cini further stated that he was not consulted by the Darkinjung Local Aboriginal Land Council or given an opportunity to provide the council with his personal knowledge of the proposed development site. In addition the council was put on notice on 27 January 2009 by way of letter from the Environmental Defenders Office (“EDO”) that the plaintiff, amongst others, wished to be consulted about indigenous issues. A further letter to similar effect was written to the council by the EDO on behalf of the Wadalba-Kanwal Association and the plaintiff on 25 March 2009. Then in March 2009, Mr Boris Banwhite and Mr Sales-Cini made a two hour video of suspected Aboriginal sites on Wadalba Hill and Wadalba wetlands forest. However, upon being approached by the plaintiff to view the video, the council refused to do so without the developers’ consultants present.

37 Finally, Mr Sales-Cini attested to the fact that the proposed development was not treated as integrated development and that consent was granted without obtaining the general terms of approval from DECCW. It was Mr Sales-Cini’s opinion that because the proposed development will impact upon Aboriginal objects it should have been considered as integrated development and therefore prior approvals should have been obtained before any development was carried out on the site.

38 Mr Sales-Cini’s evidence was not tested by cross examination.

39 The plaintiff also tendered an unsigned and undated supplementary report by Mr David Johnson, the archaeologist engaged by the plaintiff to prepare a report with respect to five possible Aboriginal sites near the subject land. The report was carried out pursuant to an inspection of those sites with, amongst others, Mr Oliver Brown.

40 Given that the report did not concern sites on the subject land, was undated and was unsigned, little weight is accorded to it. I note, however, that of the five sites examined by Mr Johnson and Mr Oliver Brown, Mr Johnson concluded in his supplementary report that “it was agreed between Mr Brown and myself that none of the sites were of Aboriginal origin.”

41 The second and third defendants suggest that this conclusion is the reason why the plaintiff did not attend the site inspection with an archaeologist on 14 October 2009 and why no archaeological evidence is forthcoming from the plaintiffs, namely, because, if Mr Johnson was the plaintiff’s nominated archaeologist, his evidence would be adverse to the plaintiff. Without further evidence I decline to draw this inference but the absence of any expert evidence by the plaintiff to refute the findings of Mr Brown is, as I explain below, significant.

The Applicant Must Pay Security for Costs

Applicable Legal Principles

42 There is no question that this Court has the power to order the security sought (see Reid’s Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171 at [23] and the authorities stated thereat).

43 In Burrell Place Community Action Group Incorporated v Griffith City Council [2009] NSWLEC 120, Lloyd J identified the kinds of factors to be taken into account in the exercise of the Court’s discretion to order security (at [12]-[13]):

Melville v Craig Nowlan & Associates Pty Ltd

KP Cable Investments Pty Ltd v Meltglow Pty Ltd

(i) whether the application for security has been brought promptly;

(ii) the strength and bona fides of the case in which security is sought;

(ii) whether the impecuniosity of the applicant results from the respondent’s conduct;

(iv) whether the application for security is oppressive, in the sense of denying of an impecunious citizen or organisation a right to litigate;

(v) whether there are any persons standing behind the plaintiff applicant who are likely to benefit and be willing to provide the security;

(vi) whether persons standing behind the plaintiff applicant offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking;

Belmore Residents Action Group Incorporated v Canterbury City Council

Diamond v Birdon Contracting Pty Ltd

Sharples v Minister for Local Government

44 However, in Sales-Cini v Wyong City Council [2009] NSWLEC 1388 Acting Registrar Gray stated the following (at [25]):

KP Cable Investments Pty Limited v Meltglow Pty Ltd

Sharples v Minister for Local Government & Ors

45 With respect to the open standing provisions under s 123 of the Environmental Planning and Assessment Act 1979 (“the EPAA”), the views expressed are, first (see Burrell Place at [14] per Lloyd J), that:

Environmental Planning and Assessment Act

Melville v Craig Nowlan

46 And (see Sales-Cini at [26] per Acting Registrar Gray citing Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214):

26 Secondly, where proceedings are brought pursuant to open standing provisions there are not necessarily other parties who are in a position to bring proceedings seeking the same relief. In Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214; [2002] NSWLEC 217, Pain J considered whether an order for security for costs should be made against an Aboriginal elder who had brought proceedings pursuant to the same open standing provisions upon which these proceedings are brought. At [13] she considered that:

Other judgements to which I have been referred have made the comment that given the broad standing provided in the statutory provisions before me, anyone can bring such proceedings and therefore suggest that an order for security will not necessarily prevent the merits of the controversy from being determined because another person is able to come forward and pursue the case. Such statements seem to me to fail to take into account the substantial practical difficulties of proceeding with litigation before this Court where public law matters are in issue rather than private interests. I do not consider that there is such a pool of potential litigants in the community willing to come before the courts to remedy breaches of public law that a Court can be certain in matters of this kind that another litigant will be in a position to come forward, even if the matter is serious.

47 A further consideration is whether, as the plaintiff claims, the proceedings have been brought “in the public interest”. As was noted by Acting Registrar Gray in Sales-Cini (at [27]-[28]):

27 … Rule 4.2 of the Land and Environment Court Rules 2007 expressly provides that an order for security for costs may not be made where the Court is satisfied that the proceedings have been brought in the public interest. This reflects a long standing principle that the Court may consider whether the proceedings have been brought in the public interest in order to determine whether it is appropriate to make an order to security for costs. Specifically, in Carriage v Stockland (Constructors) Pty Ltd (No 2) Pain J ruled at [15] that:

Where, as in this case, the broad interest asserted as the motivation for taking the proceedings is the protection of community property and cultural heritage, in this case, Aboriginal relics, I do not think the Court should lightly make an order for security for costs which, if made, is likely to bar these proceedings.

28 Similarly, in Williams v Pardoe (2003) 123 LGERA 214; [2003] NSWLEC 363, Bignold J found that there was a strong public interest element where proceedings were brought by an Aboriginal custodian to protect Aboriginal objects from being damaged, in breach of the National Parks and Wildlife Act 1974.

Application of Principles to the Facts of This Case

48 The following matters were not in dispute:

(a) that the plaintiff is impecunious;

(b) that this was not in any way caused by the actions of the second and third defendants;

(c) that there is no one standing behind the plaintiff who is willing to provide security or who has offered any personal undertaking to be liable for the costs of the second and third respondents if the plaintiff is unsuccessful;

(d) that the second and third defendants are not in substance the plaintiff and the proceedings are not defensive in nature; and
(e) that the plaintiff does not seek to privately gain from the litigation.

49 Rather, it was submitted by the plaintiff that (and therefore these are the issues to be decided on the application):

(a) first, the application for security was not brought sufficiently promptly given that evidence was virtually finalised and the matter was ready to be set down for hearing. The application should, the plaintiff argued, have been brought prior to the evidence having been filed;

(b) second, the plaintiff’s case was strong having regard to the unchallenged evidence of Mr Sales-Cini;

(c) third, the application if successful would, given the plaintiff’s impecuniosity, stultify the litigation and was oppressive as there was no one who could or would step into the plaintiff’s shoes to continue the proceedings; and
(d) fourth, the litigation was brought in the public interest to the extent that the plaintiff seeks to protect Aboriginal cultural heritage for the benefit of indigenous and non-indigenous persons alike.

50 The second and third defendants submitted in reply that:

(a) before the strength of the plaintiff’s case could be ascertained, an inspection of the subject land and the sites claimed to be of significance by qualified experts was required. Thus to proceed with the application for security for costs any earlier would have been premature;
(b) the plaintiff’s case, absent any expert evidence in response to that of Mr Brown and Mr Shelley, is weak and is based only on speculative and hearsay material contained in the affidavit of Mr Sales-Cini;

(c) in addition, not only is there abundant evidence that the council considered the Aboriginal cultural significance and heritage of the site, but with respect to the challenge based on the fact that the development is not integrated development, there is no evidence of any knowledge to enliven s 91(2) of the EPAA;

(d) there is no evidence from Mr Sales-Cini that an order would stultify the litigation and is oppressive. To the contrary, there is evidence that there are representative Aboriginal associations who may be able to litigate the issues raised by the plaintiff if they so chose. Further, by reason of the open standing provisions of s 123 of the EPAA and s 176A of the NPW Act, a security for costs order would not of itself bar access to the Court as there may be other entities who could bring the proceedings; and
(e) the litigation is not public interest litigation. The mere fact that a breach of the EPAA is alleged or that the subject matter of the proceedings involves Aboriginal cultural heritage does not make the litigation public interest litigation compelling the refusal of order for security. If anything, the public interest lies in upholding the completed approval process in order to ensure the orderly development of land.

Consideration

51 On balance I find the submissions put by the second and third defendants persuasive.

52 First, I do not accept that the second and third respondents acted tardily in bringing this application. The plaintiff was both entitled and required to make its case known to the defendants in order for the defendants to assess the strength of the plaintiff’s case and to understand the ambit of the claims made against them. This included affording the plaintiff the opportunity of having access to the land for the purpose of obtaining an archaeological report. This occurred on 14 October 2009, albeit absent the plaintiff. Mr Brown’s report was finalised on 16 October 2009. The notice of motion for security for costs was filed on 28 October 2009. In these circumstances, there was no disentitling delay by the second and third defendants in bringing the application.

53 Second, the plaintiff’s case ought properly, in my view, be characterised as weak, given the absence of any evidence from the plaintiff supporting his claims other than his own.

54 While I accept the unchallenged evidence that Mr Sales-Cini is an Aboriginal Traditional Owner of the Darkinjung nation and that he has knowledge through his elders of the subject land and its significance to himself and the Darkinjung people, and moreover, that in his view the subject land contains sites of significance, this must be balanced against the expert archaeological evidence that categorically refutes the existence of such sites (with the exception of the grinding groove site). Given the vague and generalised nature of the plaintiff’s evidence, much of which has been correctly described as speculative, is based on hearsay and would largely be inadmissible outside the confines of this application, in assessing the strength of the plaintiff’s claim for the purpose of this application, I prefer the evidence of Mr Brown.

55 Critically, the plaintiff has also offered no evidence in response to that of Mr Shelley, whose affidavit demonstrates that the council did give proper consideration to the cultural significance of the site. This consideration included consultation with the relevant indigenous groups, the commissioning of experts reports and the invitation for, and assessment of, submissions on the proposed development. That the council was sufficiently mindful of the potential significance of the site is demonstrated by the imposition of condition 39 (as a condition of the consent) to ensure that any relics or engravings that are located on the subject land are protected.

56 In relation to the allegation that the council failed to treat the development as integrated development under s 91(2) of the EPAA, this claim cannot succeed on the evidence presently before the Court: it was neither known immediately before the DA was made that a relic existed on the land to which the DA applied (s 91(2)(a)), nor was the land an Aboriginal place within the meaning of the NPW Act immediately before the development application was made (s 91(2)(b)).

57 Third, while I accept that as a matter of reality an order to provide security will stultify the litigation given, insofar as the plaintiff is concerned, his impecuniosity, I do not accept that this necessarily means, in light of the open standing provisions pursuant to which the claim is brought, that another interested party cannot or will not pursue the litigation. In any event, this is but one factor that must be balanced against the others discussed above which, in my opinion, weigh in favour of an order for security for costs being made.

58 That plaintiff relied on the decision of Donnelly & Mundine v Ross Mining N1 [1999] NSWLEC 76 in support of his submission that an order for security for costs ought not be made where it would inevitably restrain a litigant from taking any further part in the proceedings by reason of his or her limited financial means.

59 That decision may, in my opinion, be distinguished from the facts of the present case. In that case, Talbot J held that the application for security was oppressive following cross examination which revealed that the primary purpose of seeking the order was to attempt to bring the litigation to a premature conclusion before the real issues could be litigated, rather than any genuine desire to seek protection with respect to costs if the applicants were unsuccessful. Thus the evidence disclosed an intention on the part of the respondents to take whatever action was necessary to bring the proceedings to an end before a hearing on the merits. His Honour therefore held that the application for security was “no more than a forensic device for the furtherance of that purpose” (at [87] and see also [82]-[88]). I do not find any such intention present on the application before me.

60 Fourth, I do not accept, as currently framed, that this litigation may properly be characterised as public interest litigation sufficient to displace a security for costs order. While I accept that the plaintiff is raising matters that involve public interest, of itself this is not enough (see Kennedy v Director-General of the Department of Environment and Conservation [No. 2] [2007] NSWLEC 271 at [22]-[24]). As Lloyd J stated in Burrell Place (at [20]-[21]):

20 Ms Pearman submits that the Action Group is raising matters of public interest in respect of the Council’s statutory duty as a consent authority to determine development applications under s 79C and s 80 of the Environmental Planning and Assessment Act , referring to Belmore Resident Action Group Incorporated v Canterbury City Council , inter alia.
21 However, the fact that the Action Group is said to be raising matters of public interest does not, of itself, mean that it would not be ordered to pay costs in the event that it is unsuccessful at the hearing. Although r 4.2(2) of the Land and Environmental Court Rules 2007 states that the Court may decide not to make an order requiring an applicant plaintiff to give security for costs if it is satisfied that the proceedings have been brought in the public interest, it is but one factor amongst others to be taken into consideration in the discretion of the Court. The fact remains that the provisions of s 98 of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules continue the basic proposition that costs are in the discretion of the court and that the usual order is that costs follow the event: F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No. 5) [2008] NSWLEC 235; Anderson v Minister for Planning (No. 2) [2008] NSWLEC 235; Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWLEC 299; Ku-ring-gai Council v Minister for Planning (No. 2) [2008] NSWLEC 276. That is, in order to justify a departure from the usual order for costs, it is necessary that there be some other factor in addition to the public interest nature of the litigation, such as an important question of statutory construction, or the breaking of new ground on a matter of legal principle: Engadine Area Traffic Group Inc v Sutherland Shire Council (No. 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [18]-[20]; F & D Bonaccorso at [22]-[29]. The points of claim in the present case do not appear to raise any question of construction or new principle.

61 The present points of claim neither raise an important question of statutory construction, nor do they break new ground on a matter of legal principle.

62 I therefore find that on the evidence before me the second and third defendants have successfully made out a case for an order for security for costs. While this Court came to a different conclusion in the Sales-Cini matter before Acting Registrar Gray, that decision was a product of the specific evidence and submissions presented before the Acting Registrar and is not, in any event, binding upon me.

The Amount of Security and Consequential Orders

63 The evidence of Mr Simpson is that likely party party costs (exclusive of GST) and disbursements if the matter proceeds will be approximately $44,023.

64 As the plaintiff correctly submitted, this estimate is just that and has not been subjected to assessment. The plaintiff further submits that no more than a nominal order for security in an amount of $1000-$2000 is appropriate given his financial circumstances. However, to order security in this limited amount would be to negate the very purpose for which the security is sought by the second and third defendants.

65 But given the likely chilling effect an order would have on the litigation, given that the plaintiff does not seek to personally gain from the litigation and given that no mal fides can be attributed to his motivation for bringing the claim, I am disinclined to order security in any sum approximating the costs of the hearing estimated by Mr Simpson.

66 Rather, I am of the view that, in light of the factors discussed above, that security in the amount of $15,000 is appropriate. This figure is approximately half of two thirds of $44,023.

67 The second and third defendants properly conceded that a week to provide the security was patently unreasonable, but that a period of six months, as was suggested by the plaintiff, would afford the plaintiff a de facto injunction given that all work had ceased on the subject land as a consequence of these proceedings (although I note that no undertaking has been given by the second and third defendants in this regard). While I found this argument compelling, the plaintiff must nevertheless be afforded a reasonable period of time in which to provide the security.

68 Accordingly, the plaintiff is to provide the security by no later than 4.30pm on 8 February 2010. The proceedings will be stayed until such time as the security is provided and if it is not provided by the time and date stipulated, the proceedings will be dismissed.

69 As the plaintiff has not been successful in resisting the order for security and because I am of the view that this is not public interest litigation thereby displacing the usual order in relation to costs, I order that the plaintiff is to pay the costs of the motion.

Orders

70 The formal orders of the Court are:

(1) the plaintiff is to give security for costs of the second and third defendant to the satisfaction of the Registrar in the amount of $15,000;

(2) the proceedings are stayed until the Court is satisfied that security in the above amount has been given;

(3) if the security in order 1 is not provided by 4.30pm 8 February 2010, then the summons and proceedings are dismissed with costs;
(4) the plaintiff is to pay the costs of the motion of the second and third defendants;

(5) liberty to restore on 48 hours notice; and
(6) the exhibits on the motion are to be returned.

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Citations

Sales-Cini v Wyong City Council [2009] NSWLEC 201

Most Recent Citation

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Cases Cited

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Statutory Material Cited

2

Reid's Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171

Burrell Place Community Action Group Incorporated v Griffith City Council [2009] NSWLEC 120

Wayne Sales-Cini v Wyong City Council [2009] NSWLEC 1388

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CITATION:	Sales-Cini v Wyong City Council [2009] NSWLEC 201
PARTIES:	PLAINTIFF Wayne Sales-Cini FIRST DEFENDANT Wyong City Council SECOND DEFENDANT Wadalba Central Developments Pty Limited THIRD DEFENDANT Westminster Development Pty Limited
FILE NUMBER(S):	40471 of 2009
CORAM:	Pepper J
KEY ISSUES:	COSTS :- security for costs - discretionary principles for ordering security for costs - impecunious plaintiff - proceedings brought under open standing provision - proceedings not in public interest - security for costs ordered
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 91(2), 123 National Parks and Wildlife Act 1974 ss 90, 176A
CASES CITED:	Burrell Place Community Action Group Incorporated v Griffith City Council [2009] NSWLEC 120 Carriage v Stockland (Constructors) Pty Ltd (No 2) (2002) 123 LGERA 214 Donnelly & Mundine v Ross Mining N1 [1999] NSWLEC 76 Kennedy v Director-General of the Department of Environment and Conservation [No. 2] [2007] NSWLEC 271 Reid’s Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171 Sales-Cini v Wyong City Council [2009] NSWLEC 1388
DATES OF HEARING:	23 November 2009
EX TEMPORE JUDGMENT DATE:	24 November 2009
LEGAL REPRESENTATIVES:	PLAINTIFF Mr A Oshlack (agent) SOLICITORS Indigenous Justice Advocacy Network SECOND & THIRD DEFENDANTS Mr S Griffiths (solicitor) SOLICITORS Pikes Lawyers