Wendy Maria Jarasius v Forestry Commission of New South Wales

[1988] NSWLEC 164

Land and Environment Court

of New South Wales

CITATION:

Wendy Maria Jarasius v. Forestry Commission Of New South Wales [1988] NSWLEC 164

PARTIES:

APPLICANT
Wendy Maria Jarasius

FIRST RESPONDENT
Forestry Commission Of New South Wales

SECOND RESPONDENT
Harris-Daishowa (Australia) Pty Limited

THIRD RESPONDENT
Duncan's Holdings Limited

FOURTH RESPONDENT
J. & J. Whitehead

FIFTH RESPONDENT
Tablelands Sawmills Pty Limited

SIXTH RESPONDENT
Barry Damien Collins and James Andrew Whitehead

FILE NUMBER(S):

40173 of 1987

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

03/17/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This matter comes before the Court to make orders to give effect to my judgment, and I have been given the benefit of draft short minutes by each of the parties. The applicant submits that I should make orders firstly in the nature of declarations, together with consequential injunctions and an order for costs. The respondents submit that there is no utility in the Court making the declarations sought, the reason being that the subject licences relate not only to the areas the subject of these proceedings, but to substantial adjoining areas where similar or identical works are intended to be carried out without challenge.

It is also submitted that not only is there a lack of utility, it would be dangerous to make such declarations because of the conflict with possible litigation that may arise as a consequence of working in those other areas. The applicant submits that these problems can be overcome by careful drafting, and seeks to have the declarations made.

On consideration of the submissions, I have concluded that the dangers apparent in the making of the declarations exceed the utility claimed by the applicant, and I therefore decline to make the declarations as sought.

Notwithstanding that the applicant initially sought injunctions to give effect to my orders, through its counsel it now is prepared to accept the undertakings offered by the first respondent. Those undertakings have been amended after consultation between the parties and, as I understand it, all parties agree that they do in fact give effect to my judgment.

I therefore accept undertakings 1, 2 and 3 as prepared by the first respondent, but amended to refer to exhibit "A" in lieu of exhibit "1", and initialled by me and filed with the records of the Court. I grant liberty to apply and I order that the exhibits may be released, with the exception of exhibits "A" and "19A". The remaining order is an order sought by the applicant that the respondents pay the applicant's costs for these proceedings. These proceedings, of course, include not only the hearing of the application, but the interlocutory proceedings that took place in 1987 and the various steps leading up to the hearing of the matter itself.

The interlocutory proceedings before MrJustice Bignold took something in the order of three days, with a number of appearances prior to the hearing itself. Those proceedings were abandoned by the applicant and no interlocutory orders were sought until the conclusion of the hearing of the matter at the end of the term of 1987.

During the period leading up to the hearing of the case, there was a number of applications made to the Court with respect to the provision of particulars and answers to interrogatories, and also the production of information and material on subpoena.

The applicant was responsible, in my view, for costs incurred by the first and second respondents because of its failure to abide by orders of the Court with respect to the provision of information, production of documents and the filing of affidavits. I should add that some of these criticismns should be levelled at the respondents as well.

The hearing of the matter extended over a long period of time and, after the adjournment of the matter for a view and submissions, intervening events brought about the necessity for the reopening of the evidence. It should be clear from my reasons for judgment that the applicant was successful in the substantive issues. However, the applicant was unsuccessful in its attempt to resist the exercise of my discretion with respect to matters raised when the case was reopened for the acceptance of further evidence.

The Forestry Commission of New South Wales, being the first respondent, is responsible for the care and control of all activities in the forests which were the subject of these proceedings. I am satisfied that the third, fourth, fifth and sixth respondents participated in the proceedings mainly to put before the Court matters necessary for the determination of matters of discretion. I am also satisfied that the undertakings that I have accepted from the first respondent are sufficient to ensure that no orders are or were necessary against any of the other respondents.

So far as the exercise of discretion with respect to the modified proposal introduced on the reopening of the case, each of those respondents has been successful in the exercise of the Court's discretion.

In all the circumstances I do not think there should be any order for costs with respect to the third, fourth, fifth and sixth respondents.

I am satisfied that the first and second respondents should meet substantially the costs of the successful applicant. At the same time however, I am satisfied that in the assessment of costs the abandonment of the interlocutory proceedings and costs unnecessarily incurred prior to the hearing should be taken into account.

To take all those matters into account presents the taxing officer with an unenviable task. In such circumstances, doing the best I can, I order that the first and second respondents pay eighty per cent of the costs of the applicant in these proceedings, which relate to all matters between the applicant and the first and second respondents from the commencement of the interlocutory proceedings, and up to and including the proceedings now before the Court.