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Williams v Barrick Australia

Williams v Barrick Australia

Case [2004] NSWLEC 306 21 June 2004

Environmental Protection

Costs

Public Interest Litigation

Jurisdiction

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Williams v Barrick Australia and Ors [2004] NSWLEC 306

PARTIES:
APPLICANT:
Williams
RESPONDENTS:
Barrick Australia and Ors

FILE NUMBER(S): 40948; 40010 of 2002

CORAM: Bignold J

KEY ISSUES: Costs :- class 4 proceedings alleging breaches of legislation-whether public interest litigation-whether special circumstances justifying departure from ordinary rule of practice that the successful party receive costs.

LEGISLATION CITED: Land and Environment Court Act 1979, s 69
National Parks and Wildlife Act 1974, s 176A
Environmental Planning and Assessment Act 1979, s 123

CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72;
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229;
Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1998) 105 LGERA 354;
Williams v The Minister for Environment and Heritage [2004] FCAFC 58

DATES OF HEARING: 04/02/2004

DATE OF JUDGMENT: 06/21/2004

LEGAL REPRESENTATIVES:

APPLICANT:
A Oshlack (agent)
SOLICITORS
N/A
FIRST AND SECOND RESPONDENTS
N Williams SC
THIRD RESPONDENT
N/A
FOURTH RESPONDENT
M Brennan (Solicitor)
SOLICITORS
FIRST, SECOND AND FOURTH RESPONDENTS
Blake Dawson Waldron
THIRD RESPONDENT
National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND Matter No:

40948, 40010 of 2002

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

21 June 2004

NEVILLE WILLIAMS

Applicant

BARRICK AUSTRALIA LIMITED

First Respondent

BARRICK GOLD OF AUSTRALIA LIMITED

Second Respondent

DIRECTOR-GENERAL NATIONAL PARKS & WILDLIFE SERVICE

Third Respondent

DR COLIN PARDOE

Fourth Respondent

JUDGMENT

A. INTRODUCTION

1. By Notices of Motion, the first, second and fourth Respondents seek an order for costs against the Applicant in two related class 4 proceedings which were heard together and were determined by my reserved judgment handed down on 26 September 2003 dismissing each application and reserving the question of costs in each proceeding. That judgment is reported in (2003) 128 LGERA 80.

2. The costs order sought in proceedings 40010 of 2002 is limited to costs incurred in respect of only that part of the hearing that commenced on 25 November 2002 and was concluded on 7 May 2003 following a five months adjournment granted by consent on 28 November 2002 in consequence of supervening litigation instituted by the Applicant.

3. The Respondents claim all their costs in the related proceedings 40948 of 2002 which were filed at the commencement of the hearing on 25 November 2002.

4. The Respondents’ costs applications are based upon their ultimate success in the two proceedings and reflect the Court’s usual practice of awarding costs to the successful party in class 4 proceedings. The Applicant resists both costs applications on account of the asserted public interest nature of the litigation and his unselfish motivation in prosecuting the claims. Additionally, in respect of proceedings No 40010 of 2002 the Applicant relies upon his earlier successes in the litigation which he says should be recognised by way of set-offs against the Respondents’ present costs claims in the proceeding.

5. The present costs applications were heard concurrently with two other costs applications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Williams v Barrick Australia

Details

AGLC: Williams v Barrick Australia [2004] NSWLEC 306
Case: [2004] NSWLEC 306
Decision Date: 06/21/2004

CaseChat Overview and Summary

The case of Williams v Barrick Australia involved two related class 4 proceedings before the Land and Environment Court of New South Wales. The proceedings were heard together and concerned allegations of breaches of legislation by the Respondents (Barrick Australia and others) in respect of activities at Lake Cowal. The Applicant, Neville Williams, sought declaratory and injunctive relief based on alleged breaches of the National Parks and Wildlife Act 1974 and the Environmental Planning and Assessment Act 1979. The Court dismissed the Applicant's claims and reserved the question of costs. The Respondents sought costs against the Applicant based on their success in the proceedings. The Applicant resisted on the grounds of the public interest nature of the litigation and his unselfish motivation in prosecuting the claims.

The Court considered the principles governing the exercise of its discretion on costs, as outlined in Oshlack v Richmond River Council and other authorities. The Court noted that while public interest factors may be relevant, they are not determinative and do not automatically entitle a litigant to immunity from a costs order. The Court found that the Applicant's motivation in prosecuting the proceedings was unselfish but that the claims did not involve the elucidation of new law or advance the public interest. The Court also found that there were no special circumstances that would justify departing from the ordinary rule that the successful party should receive costs. Accordingly, the Court ordered the Applicant to pay the Respondents' costs in both proceedings.

Orders