Williams v Pardoe

[2004] NSWLEC 308

Land and Environment Court

of New South Wales

CITATION:

Williams v Pardoe and Ors [2004] NSWLEC 308

PARTIES:

APPLICANT:
Williams

RESPONDENTS:
Pardoe and Ors.

FILE NUMBER(S):

40626 of 2003

CORAM:

Bignold J

KEY ISSUES:

Costs :- in class 4 proceedings-interlocutory hearing for interlocutory injunction-interlocutory injunction refused-subsequently final hearing concluded and judgment reserved.

LEGISLATION CITED:

Land and Environment Court Act, s 69(2)

CASES CITED:

Williams v Pardoe [2003] NSWLEC 363;
Williams v Pardoe and Ors [2003] NSWLEC 150

DATES OF HEARING:

04/02/2004

DATE OF JUDGMENT:

06/21/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack (Agent)
SOLICITORS
N/A

1ST-3RD RESPONDENTS
Mr N Williams SC
FOURTH RESPONDENT
N/A

SOLICITORS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND Matter No:

40626 of 2002

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

21 June 2004

NEVILLE WILLIAMS

Applicant

v

COLIN PARDOE

First Respondent

BARRICK AUSTRALIA LIMITED

Second Respondent

BARRICK GOLD OF AUSTRALIA

Third Respondent

DIRECTOR-GENERAL OF NATIONAL PARKS AND WILDLIFE SERVICE

Fourth Respondent

JUDGMENT

1. By Notice of Motion, the first, second and third Respondents seek an order for costs against the Applicant in respect of the hearing of the Applicant’s claim for an interlocutory injunction in class 4 proceedings alleging breaches of conditions of Permit No 1468 granted by the Director-General pursuant to the National Parks and Wildlife Act 1974, s 87 (NP&W Act). The Applicant resists any costs order.

2. The hearing of the Applicant’s claim for an interlocutory injunction occurred on 6 June 2003 (just one week after the class 4 application had been filed). In my reserved judgment delivered on 24 June 2003) I refused the application for interlocutory relief and reserved the question of costs: see Williams v Pardoe and Ors [2003] NSWLEC 150.

3. Subsequent to the hearing on the disputed costs claim, the final hearing of the class 4 proceeding was concluded on 8 June 2004, when judgment was reserved.

4. The Respondents’ costs claim in the present proceedings was heard concurrently with two other costs applications made by the same Respondents against the Applicant in other proceedings relating to Aboriginal objects at the approved Lake Cowal Gold Mine Site.

5. Separate judgment in those proceedings have been contemporaneously delivered with this judgment. In my judgment, in one of those other cases [2004] NSWLEC 306, I set forth extensively (i) the litigation history between the parties concerning Aboriginal objects at the Lake Cowal Gold Mine Site and (ii) the principles governing the exercise of the Court’s broad costs discretion conferred by s 69(2) of the Land and Environment Court Act 1979 and I made relevant findings concerning the Applicant’s motivation in prosecuting the proceedings and on the disputed question whether the proceedings could properly be characterised as public interest litigation.

6. But for the supervening facts that (i) the final hearing of the class 4 proceedings was recently concluded on 8 June 2004 when judgment was reserved and (ii) the Applicant’s claims to final relief in the proceedings were considerably expanded from those that existed when the Applicant’s claim to interlocutory injunction was determined one year ago, it would, in my opinion, have been appropriate to have adjudicated upon the Respondents’ costs claim in the interlocutory proceedings.

7. However, in view of those supervening facts and the further fact that there have been other interlocutory proceedings in the proceedings including the Respondents’ unsuccessful application for security for costs where the question of costs was reserved—see Williams v Pardoe ([2003] NSWLEC 363—I am of the opinion the required adjudication on the Respondents’ present application for a costs order should be deferred until consideration of the question of costs that will arise following the delivery of judgment that was recently reserved following the completion of the final hearing of the proceedings.

8. Accordingly, I order that the adjudication on the Respondents’ costs application be deferred until consideration of the question of costs that arises following delivery of the reserved judgment in the proceedings.