Williams v Director General National Parks and Wildlife Service

[2004] NSWLEC 307

Land and Environment Court

of New South Wales

CITATION:

Williams v Director General National Parks And Wildlife Service And Ors. [2004] NSWLEC 307

PARTIES:

APPLICANT:
Williams

RESPONDENTS:
Director General National Parks And Wildlife Service And Ors.

FILE NUMBER(S):

40964 of 2002

CORAM:

Bignold J

KEY ISSUES:

Costs :- in class 4 proceecdings-unsuccessful challenge to validity of s 87 Permit and s 90 consent granted under National Parks and Wildlife Act 1974.

LEGISLATION CITED:

Land and Environment Court Act 1979, s 69(2)

CASES CITED:

Mees v Kemp (No 2) (2004) FCA 549;
Williams v Barrick Australia and Ors [2004] NSWLEC 306;
Williams v Barrick Australia Limited & Ors. (2003) 127 LGERA 354.

DATES OF HEARING:

04/02/2004

DATE OF JUDGMENT:

06/21/2004

LEGAL REPRESENTATIVES:

APPLICANT:
A Oshlack, Agent

SOLICITORS
N/A

FIRST RESPONDENT:
N/A
SECOND AND THIRD RESPONDENTS
N J Williams SC
FOURTH AND FIFTH RESPONDENTS
M Brennan, Solicitor

SOLICITORS
FIRST RESPONDENT
National Parks and Wildlife Service
SECOND TO FIFTH RESPONDENTS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND Matter No

. . 40964 of 2002

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

21 June 2004

NEVILLE WILLIAMS

Applicant

v

THE DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE

First Respondent

BARRICK AUSTRALIA LIMITED ACN 007 857 598

Second Respondent

BARRICK GOLD OF AUSTRALIA ACN 008 143 137

Third Respondent

COLIN PARDOE

Fourth Respondent

JOHAN KAMMINGA

Fifth Respondent

JUDGMENT

1. By Notice of Motion, the second, third and fourth Respondents seek an order for costs against the Applicant relating to the final hearing of these class 4 proceedings which were determined by my reserved judgment handed down on 19 May 2003 dismissing the class 4 application and reserving the question of costs. That judgment is reported in (2003) 127 LGERA 354.

2. The class 4 proceedings which had been commenced on 28 November 2002 had challenged the validity of a s 87 Permit and s 90 Consent that had been granted by the first Respondent on 27 November 2002 under the National Parks and Wildlife Act 1974 in respect of Aboriginal objects situate on land at Lake Cowal that was the subject of the then pending Mining Lease Application 45. (That application was subsequently approved on 13 June 2003 when Mining Lease 1535 was granted. )

3. Immediately upon the commencement of the class 4 proceedings, the Court, by consent of all parties, urgently considered the Applicant’s claim to interlocutory relief and on 3 December 2002 I granted interlocutory relief, including the suspension of the operation of the s 87 Permit and s 90 Consent and the grant of interlocutory injunctions for the reasons published on 5 December 2002—see [2002] NSWLEC 235.

4. That interlocutory relief was terminated upon delivery of my judgment after the final hearing of the Applicant’s claim to final relief in which I dismissed all of the Applicant’s claims.

5. The costs application which has been confined to the costs incurred in the final hearing is based upon the complete success of the Respondents at that hearing and the usual practice of the Court to award successful parties their costs in class 4 proceedings.

6. The Applicant opposes any award of costs against him, principally on account of the asserted public interest nature of the litigation and his unselfish motivation in prosecuting his claims.

7. The Respondents’ Motion claiming costs was heard in conjunction with their claims to costs in other related class 4 proceedings that had been brought against them by the Applicant. Although there have been several class 4 proceedings brought by the Applicant against the Respondents during the past 2 ½ years in respect of Aboriginal objects situate at the approved Lake Cowal Gold Mine Site, it is, I think, more convenient and meaningful to deal separately with each of the costs claims made in the separate proceedings by the successful respondents.

8. In my judgment delivered contemporaneously in related proceedings Nos 40010 of 2002 and 40948 of 2002, I have fully set forth (i) that overall litigation history, and (ii) the principles for the exercise of the Court’s broad costs discretion conferred by the Land and Environment Court Act 1979, s 69(2) : see Williams v Barrick Australia and Ors [2004] NSWLEC 306 and I adopt for present purposes those relevant passages.

9. The Applicant’s unsuccessful challenge to the validity of the s 87 Permit and s 90 Consent was based upon conventional administrative law grounds. The Applicant’s challenge relied upon many discrete grounds, none of which was held to have been substantiated.

10. By parity of reasoning to that adopted in support of my findings and conclusions in Williams v Barrick Australia and Ors (2004) NSWLEC 306, I would regard (i) the Applicant’s motivation in prosecuting the present proceeding; and (ii) any public interest element of the present proceeding to be not materially different from my findings in respect of those respective matters that case .

11. The consequence of those findings is that the Applicant has not established any special circumstances that would justify a departure from the usual costs rule or practice that a successful party in class 4 proceedings ordinarily should be entitled to his costs.

12. However, the Applicant in the present case (unlike the other related proceedings) has submitted that although he was unsuccessful in the proceedings, nonetheless the Court rejected the argument advanced on behalf of all the Respondents that the Director-General was vested with an “unfettered discretion” to grant a permit under s 87 or a s 90 consent under the NP&W Act, and accepted the competing argument advanced by the Applicant that the duty imposed by s 2A(3) of the NP&W Act “to give effect to the objects of the Act” applied to the role of the Director-General in issuing a permit under s 87 and a consent under s 90. This matter is discussed at pars 41 to 57 (inclusive) of my judgment reported in 127 LGERA 354.

13. The Applicant argued that this holding by the Court was a significant holding of general application to the exercise of the Director-General’s responsibilities and functions under the NP&W Act in respect of the protection of Aboriginal objects and that this particular feature of the outcome in the litigation had infused or injected the proceeding with a significant public interest element.

14. Although the Applicant was successful on this important point of statutory construction based upon the NP&W Act, s 2A which had been inserted into the Act by the 2001 Amendment Act (which obviously has general significance for the administration of the NP&W Act), the Applicant wholly failed to substantiate his claims that the Director-General had failed to take into consideration relevant considerations (including those that were made relevant by virtue of s 2A) when granting the s 87 Permit and s 90 Consent.

15. Accordingly, even assuming that the point of statutory construction decided in the proceedings may prove to be of general importance to the administration of Part 6 of the NP&W Act, it did not ultimately avail the Applicant in his challenge to the validity of the s 87 Permit and s 90 Consent. From the perspective of the litigation (including the issues raised and their outcomes) the admittedly important point of construction did not feature at all prominently or decisively. Indeed, it arose almost incidentally in the proceedings and occupied very little hearing time.

16. Whereas I would respectfully agree with the following observation of Weinberg J in Mees v Kemp (No 2) (2004) FCA 549—

(T)he award of costs need not be an all or nothing proposition. Costs are discretionary, and although the discretion to award costs must be exercised judicially, reasonable minds can differ as to what would be appropriate in any given case.

my evaluation of the present proceedings and of the Applicant’s position in the proceedings, does not approximate his Honour’s evaluation of the applicant and his claims in that case which justified in his Honour’s exercise of discretion the making of a costs order against the unsuccessful applicant that he pay 50 per cent of the successful party’s costs.

17. Ultimately, in my evaluation of the present case, I have concluded that this particular feature of the judgment delivered in the proceedings does not (either by itself or in combination with other features of the proceedings) justify a departure from the Court’s ordinary rule or practice of awarding costs to the successful party in class 4 proceedings.

18. For all the foregoing reasons, I order that the Applicant pay the costs of the second, third and fourth Respondents in respect of the final hearing of the proceedings commencing on 5 March 2003 and concluding on 12 March 2003 in the sum agreed, or failing agreement, as assessed.