Trindall v Minister for Aboriginal Affairs

[2004] NSWLEC 181

Land and Environment Court

of New South Wales

CITATION:	Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 181
PARTIES:	Les Trindall (1A) Robert Lester (3A) Oswald Cruse (4A) William Murray (5A) James Morgan (6A) Manul Ritchie (7A) David Clark (8A) Wayne Griffiths (9A) Thomas Briggs (10A) Minister for Aboriginal Affairs (1R) Murray Chapman (2R)
FILE NUMBER(S):	41422 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Costs :- Public interest proceedings Removal of Councillors of the NSW Aboriginal Land Council When a successful litigant may not have the benefit of an order for costs
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 (NSW) Land and Environment Court Act 1979 (NSW) Environmental Planning & Assessment Act 1979 (NSW)
CASES CITED:	Liversidge v Anderson [1942] AC 206; Oshlack v Richmont River Council (1998) 193 CLR 72; R v Lancashire County Council; ex parte Huddleston [1986] 2 All ER 941; South-West Forest Defence Foundation (No 2) v Department of Conservation and Land Management (WA) (No 2) 72 ALJR 1008
DATES OF HEARING:	20 April 2004
DATE OF JUDGMENT:	04/27/2004
LEGAL REPRESENTATIVES:	J Griffiths SC/J K Kirk (Appls) Chalk & Fitzgerald (Solicitors - Appls) M Leeming (Resp) I V Knight (Solicitor - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41422/03

McCLELLAN J

TUESDAY, 27 APRIL 2004

TRINDALL & ORS

Applicant
v

MINISTER FOR ABORIGINAL AFFAIRS & ANOR

Respondent

Judgment

Introduction

1 I have previously made orders and published my reasons in this matter. The respondents, who succeeded in the proceedings, seek an order for costs. The applicants oppose the making of an order but in the alternative submit that there should be an order confined to no more than fifty percent of the respondents’ costs.

2 The applicants accept that, having failed in the proceedings, it would be usual for the Court to make an order that they should pay the respondents’ costs. However, it is submitted that in the circumstances of this case, the Court should refrain from making the usual order.

3 The submission advanced by the applicants has the following elements:

(a) the proceedings were brought by the applicants in the “public interest”, although in so far as each applicant received remuneration from the Council there was also a private interest involved;

(b) the proceedings, being in the public interest, are of benefit to society as a whole and its good government;

(c) individuals should not be dissuaded by the threat of an order for costs from seeking judicial review in relation to important issues of concern to the public or a significant sector of the public;

(d) the applicants were each duly elected representatives of the Aboriginal people of New South Wales and accordingly Councillors of the New South Wales Aboriginal Land Council. Their removal as Councillors denied the Aboriginal people of New South Wales the right to elected representation pursuant to the Aboriginal Land Rights Act 1983 (NSW), which was enacted as special legislation for their benefit. The proceedings raised issues going to the manner and circumstances in which elected representatives may be properly removed from public office. This is a matter of obvious importance to the Aboriginal people of this State, the people of the State generally, as well as the applicants individually.

(e) because they have been removed from office, the applicants had no alternative but to bring proceedings as private individuals rather than on behalf of the Council. The Minister, by his actions, deprived the Council of the capacity to challenge the appointment of the investigator, his report and the appointment of an administrator.

4 Beyond these matters it is submitted that if an order for costs is made, it should be ameliorated to accommodate the fact that the applicants were required to expend considerable time and money in proving the work which was undertaken by Mr Beauman and those assisting him after his term had expired. All the relevant facts were known to the Minister and should have been conceded rather than putting the applicants to the expense of proving these matters. The real issue was the significance, if any, of the fact that the report was not completed and delivered on time.

5 The principles which this Court must apply when determining questions of costs in class 4 matters were authoritatively considered by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72. The majority held that, in an appropriate case, a successful litigant may not have the benefit of an order for costs. The relevant principles may be summarised as follows:

(a) the terms of s 69(2) of the Land and Environment Court Act 1979 (NSW) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid;

(b) there is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Land and Environment Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party;

(c) in a matter “of very general importance” it may be inappropriate for the successful party to seek costs: Liversidge v Anderson [1942] AC 206 at 283;

(d) although the relevant proceedings may be characterised as concerned with public rather than private rights, “something more” than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. In Oshlack, “something more” could be identified in the following facts (at CLR 80):

“(iii) The appellant’s pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation ‘other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna’.
(iv) In the present case, ‘a significant number of members of the public’ shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a ‘public interest’ in the outcome of the litigation.
(v) The basis of the challenge was arguable and had raised and resolved ‘significant issues’ as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had ‘implications’ for the council, the developer and the public.” [footnotes omitted]

(e) because of the liberal standing provisions in s 123 of the Environmental Planning & Assessment Act 1979 (NSW), a rigid application of the compensatory principles in costs orders would be inappropriate for it may frustrate Parliament’s purpose of providing access to the Court to enforce environmental laws.

6 It is important to appreciate that the decision in Oshlack was in relation to proceedings which were brought pursuant to the open standing provisions. Although not entirely founded upon that fact, the majority were clearly influenced by it when coming to their decision (see South-West Forest Defence Foundation (No 2) v Department of Conservation and Land Management (WA) (No 2) (1998) 72 ALJR 1008). Furthermore, in Oshlack there could be no suggestion that the proceedings had been brought for private gain, a matter emphasised by Kirby J (para 136).

7 The present proceedings were brought by the applicants relying upon their common law standing. No challenge was made to their standing, presumably because of their financial interest in maintaining the elected Council.

8 I accept that, in bringing the proceedings, the applicants were acting bona fide from a concern that the elected members of the Council should continue to control its affairs. I am satisfied that they held a genuine belief that the Minister had acted outside the authority given to him by the Act and came to this Court to have the appropriate parameters of the Minister’s powers clarified. To this extent, the applicants were motivated by concern for the public interest reflected in the proper administration of the law relating to Aboriginal Land Councils.

9 Notwithstanding these matters, as I have identified, the applicants each had a private and pecuniary interest in the proceedings. Furthermore, the Aboriginal Land Rights Act 1986 does not provide open standing and the making of an order for costs could not defeat any presumed intention of the Parliament to give standing to persons to enforce the law beyond that which the common law affords to them. These are significant matters which distinguish this case from Oshlack and lead me to conclude that the ordinary costs rule should apply.

10 However, I am satisfied that the applicants should not be required to pay all of the respondents’ costs. There is a responsibility on all litigants to ensure that they conduct their case in an efficient manner and mindful of the potential wastage of public and private funds if matters which are not truly in dispute are left for debate. This is particularly the case in the Land and Environment Court, where the obligation frequently falls upon public authorities at a state or local government level to ensure that their conduct enables a speedy and efficient resolution of a dispute. To assist in meeting this objective, public authorities must accept that they have an obligation to litigate with “their cards on the table” so that when a bona fide challenge is brought to their actions, appropriate concessions are made and the real dispute isolated and resolved. As Sir John Donaldson MR said in R v Lancashire County Council; ex parte Huddleston [1986] 2 All ER 941 at 945:

“Certainly it is for the applicant to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.”

11 In the present case I am satisfied that a great deal of time and expense was required of the applicants to prove that work was undertaken by Mr Beauman and those helping him in the preparation of his report after the 29 August 2003. Although the issue was never conceded, the Minister called no evidence about it and merely put the applicants to proof of matters of which those advising the Minister must have been aware. This was not an appropriate manner in which to conduct the respondents’ case.

12 It is difficult for me to precisely determine the costs which the applicants incurred because of the necessity to prove matters which should have been conceded. However, it involved many hours of work by a computer expert and the preparation of a report, all of which was based upon primary research of complex records.

13 In my opinion, having regard to all these matters, it is appropriate to require the applicants to pay fifty percent of the respondents’ costs.

14 Accordingly, the order I make is that the applicants are to pay fifty percent of the respondents’ costs of the proceedings.

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