Slack-Smith v Director-General of the Department of Land and Water Conservation (No 2)

[2003] NSWLEC 266

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Land and Environment Court

of New South Wales

CITATION:

Slack-Smith and Another v Director-General of the Department of Land and Water Conservation (No 2) [2003] NSWLEC 266

PARTIES:

APPLICANTS
Ross Slack-Smith
Genise Slack-Smith

RESPONDENT
Director-General of the Department of Land and Water Conservation

FILE NUMBER(S):

40856 of 2002

CORAM:

Talbot J

KEY ISSUES:

Costs :- applicants partially successful - respondent to pay one half of applicants' costs

LEGISLATION CITED:

Native Vegetation Conservation Act 1997 s 47

CASES CITED:

Cretazzo v Lombardi (1975) 13 SASR 4;
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40 748

DATES OF HEARING:

22/09/2003

EX TEMPORE
JUDGMENT DATE :

09/22/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M A Robinson (Barrister) with Mr M H Baird (Barrister)
SOLICITORS
Navado Chartered Accountants and Solicitors

RESPONDENT
Mrs J C Kelly (Barrister)
SOLICITORS
Department of Infrastructure, Planning and Natural Resources (formerly Department of Land and Water Conservation)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40856 of 2002

Talbot J

22 September 2003

Ross Slack-Smith

Genise Slack-Smith

Applicants
v

Director-General of the Department of Land and Water Conservation

Respondent

Judgment

Introduction

1 HIS HONOUR: Both parties are seeking an order for costs in their respective favour. That situation is not entirely surprising given that the applicants were successful in showing that significant parts of the direction given by the respondent were invalid. On the other hand, the respondent was successful in defending the balance of the contents of the Direction to Carry our Remedial Work (“the direction”). Furthermore, the respondent was successful in generally defending the direction from attack on the grounds of jurisdictional error, manifest unreasonableness and estoppel. However, I reiterate that the applicants nevertheless were able to persuade the Court that on a number of grounds the direction contained conditions that were clearly invalid, outside the statutory power of the respondent and were capable of severance as a consequence of which the direction was able to be maintained in respect of its remaining parts.

2 The background facts show that the actions of the respondent’s officers in some major respects justified the concerns raised by the applicants, particularly in relation to the issue of estoppel, in respect of which the applicants were ultimately entirely unsuccessful particularly on legal grounds, but nevertheless the direction itself was put together in such a way that the indignation of the applicants was justly reflected, in my view, by taking the proceedings in the class 4 jurisdiction of the Court.

3 The principles which guide the Court in assessing costs in a general way are helpfully summarised in many authorities, one of which that comes to mind is Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40 748. In that case the Court affirmed the overriding principle that ordinarily costs follow the event.

4 The Court went on to say however, referring to authority, that when a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that a party bear the expense of litigating the portion upon which the party failed. Furthermore, a successful party who has failed on certain issues may not only be deprived of costs of those issues but may be ordered as well to pay the other party’s costs relating to them.

5 Reference was made during the course of the decision in Hughes to Cretazzo v Lombardi (1975) 13 SASR 4, upon which the applicants rely in these proceedings, and in particular the observations made by Jacobs J at p 16, which is set out in the applicants’ submissions on costs, the relevant part of which is as follows:-

But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risks of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.

6 The authorities in New South Wales have been careful to avoid as far as practicable the sifting through of the various issues and parts of a claim raised in the course of litigation for the purposes of determining an apportionment of costs. The authorities tend to stay away from that process and attempt to look at the overriding questions of what was resolved in the outcome of the litigation.

7 This case is in some respects unusual. Firstly, as Mrs Kelly points out, the issues could have been raised on appeal in class 1 proceedings. I am not sure that takes the question any further in relation to matters which bear upon the exercise of the Court’s discretion in class 4 when it comes to a question of costs. Secondly, the amended application class 4 sought orders in respect of three particular claims which the applicants came to the Court to litigate. Primarily, that the decision to issue the applicants with a written direction for remedial work is unlawful and should be set aside. Secondly, that the direction is void. Alternatively, a declaration that the respondent is estopped from relying on the direction.

8 The points of claim, filed by the applicants and upon which the applicants rely, is a comprehensive and detailed document which works through the direction clause by clause, as it were, and identifies the grounds upon which those respective conditions are challenged. Again, in summary, they are that the direction itself did not meet the statutory requirements in relation to the matters that it had to address and therefore was equivocal in its terms sufficiently for it to be set aside and that it did not meet the statutory requirements of s 47 of the Native Vegetation Conservation Act 1997.

9 There were further challenges in the points of claim to allege that the delegate’s decision was affected by jurisdictional error or error of law in the circumstances therein pleaded and there were allegations of failure to apply the principles of natural justice or procedural fairness. Moreover, there was a claim for manifest unreasonableness and finally estoppel. All of those matters went to the challenge to the validity of the direction as a whole, so Mrs Kelly is correct to say, on one view of it, that the applicants were unsuccessful, the notice is still there, depleted as it may be in major respects nevertheless the direction itself withstood the challenge. On the other hand, the applicants are entitled to boast of success in regard to the challenge to some significant parts of the direction, not only in terms of the content of particular conditions of the direction but also in a major respect so far as the actual directions given and the wide implications that those directions had for the applicants.

10 I am not satisfied that the applicants are entitled to the whole of its costs, nor am I satisfied that the respondent is entitled to maintain an application for payment of its costs. However, it must be recognised that the applicants have been significantly more successful than the respondent. I am not suggesting that the respondent and its officers were guilty of disentitling conduct but nevertheless the actions of the respondent’s officers upon which the applicants relied disclose to the Court and satisfy the Court that there was a justification for the applicants to take the proceedings in the way that they did and, accordingly, the end justifies the means because the result is there, namely, that a significant part of the direction about which the applicants complain has been set aside.

11 The exercise that I am required to embark upon, therefore, is the question of whether or not there should be an apportionment of the costs which the respondent should be asked to pay to the applicants. It is an arbitrary exercise. It is not a mathematical exercise of going through the points of claim and the evidence and ticking off where the wins were and where the losses were. It is a straight-out exercise of discretion based upon the whole of the circumstances which the Court has before it.

12 In those circumstances, I have made an assessment that the respondent should pay one half of the applicants’ costs, including the costs of today.

13 The order that the Court makes therefore is that the respondent pay one half of the applicants’ costs of the proceedings, including the costs of today. The exhibits have been returned. That is the only order that I make.