Walker v Minister for Planning

[2007] NSWLEC 837

Land and Environment Court

of New South Wales

CITATION:

Walker v Minister for Planning [2007] NSWLEC 837

PARTIES:

APPLICANT:
Jill Walker

FIRST RESPONDENT:
Minister for Planning

SECOND RESPONDENT:
Stockland Development Pty Limited
ABN 71 000 064 835

THIRD RESPONDENT:
Anglican Retirement Villages - Diocese of Sydney
ABN 39 922 848 563

FILE NUMBER(S):

40240 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Costs :- apportionment where applicant only partly successful on one ground not particularised until advanced stage of proceedings.

CASES CITED:

F & D Bonacorso Pty Limited v City of Canada Bay Council (No 4) [2007] NSW LEC 649

DATES OF HEARING:

29 November 2007

EX TEMPORE JUDGMENT DATE:

29 November 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M H Baird, barrister
SOLICITORS
Environmental Defender's Office

FIRST RESPONDENT:
Mr M Seymour, barrister
SOLICITORS
Department of Planning

SECOND RESPONDENT:
Ms A Spizzo, solicitor
SOLICITORS
Herbert Geer & Rundle

THIRD RESPONDENT:
Mr B D Fuller, solicitor
SOLICITORS
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

29 November 2007

40240 of 2007

JILL WALKER v MINISTER FOR PLANNING AND ORS.

EX TEMPORE JUDGMENT

1 HIS HONOUR: The issue before the Court is costs. Final orders were made earlier today in terms of those proposed in paragraph 205 of my earlier judgment: [2007] NSWLEC 741.

2 The applicant seeks its costs of the proceedings; and alternatively proposes that there be no order as to costs up to 31 August 2007, that an earlier interlocutory order made in September 2007 that the applicant pay costs thrown away occasioned by its amendment be vacated, and that there be an apportionment of costs thereafter. The first respondent supports the alternative. The second and third respondents submit that there should be no order as to costs, or alternatively that there should be an apportionment from 11 September 2007 which was when amended points of claim were filed.

3 The applicant succeeded on one aspect of one of three grounds that were agitated at the hearing, being the climate change aspect of the ecologically sustainable development ground.

4 The applicant commenced the proceedings in March 2007. Points of claim were filed on 26 April 2007. There was an allegation in that document that the Minister failed to consider the principles of ecologically sustainable development, but there was no reference to the climate change aspect of ecologically sustainable development.

5 On 31 August 2007 proposed amended points of claim were sent by letter by the applicant to the respondents. They are the amended points of claim upon which the trial ultimately proceeded. They raised the issue upon which the applicant succeeded. A notice of motion by the applicant for leave to amend its points of claim was filed on 4 September 2007. It was returnable on 11 September 2007 when the applicant was granted leave to rely on the amended points of claim (by consent) and the applicant was ordered to pay the costs thrown away of each respondent resulting from the amendments.

6 The respondents’ submissions included a submission that the administration of justice may be served if there was no order as to costs up to 11 September 2007 and that the costs order against the applicant be vacated. Not all respondents joined in that submission. There was a submission by one of the respondents that the fact that the applicant had obtained legal aid during the course of the proceedings might limit the ability of respondents to recover costs from the applicant under the costs order that had been made.

7 Three considerations impress me as having particular weight. First, the applicant did not succeed on any pleaded and particularised ground before it gave notice on 31 August 2007 of its proposed amended points of claim. Secondly, the applicant supports an order that there should be no order for costs in its favour until 31 August 2007 on the basis that the cost order against it is vacated. Thirdly, at least one of the respondents has argued that there is something to be said in terms of the administration of justice for an order which combines those two features. Having regard, inter alia, to those considerations, I am minded not to make any order for costs before 31 August 2007 and to vacate the costs order that was made against the applicant on 11 September 2007.

8 That leaves for consideration the question of apportionment of costs from 31 August 2007. In F & D Bonacorso Pty Limited v City of Canada Bay Council (No 4) [2007] NSW LEC 649 at [22] I said:

However, it is appropriate in some instances to apportion costs where the successful party does not succeed on all issues and the issues on which the successful party failed are separable from those upon which it succeeded. The authorities and principles relating to apportionment of costs were reviewed by me in my costs judgment in the earlier proceedings between the parties in which the applicant successfully challenged the validity of an earlier development consent granted in 2003 in relation to the same properties: F & D Bonacorso Pty Limited v City of Canada Bay Council (No 3) [2007] NSWLEC 569 [15]-[17].

9 In my view there ought to be an apportionment of costs as from 31 August 2007. The issues upon which the applicant failed are discrete and severable. Costs cannot be apportioned in a precise mathematical way by reference to the number of issues upon which the applicant succeeded. That would not take into account matters such as the documents which it was necessary to tender which overlapped more than one issue, nor would it necessarily take into account the amount of time required in relation to different issues. A broad brush approach is justified

10 Doing the best I can, I consider that it would be appropriate to order the respondents to pay 70 percent of the applicant’s costs from and including 31 August 2007.

11 The orders of the Court will therefore be as follows:

1. The respondents are to pay 70 percent of the applicants costs of the proceedings from and including 31 August 2007.
2. No order as to costs prior to 31 August 2007.
3. Vacate the order for costs made against the applicant on 11 September 2007.