Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139

Land and Environment Court New South Wales

Medium Neutral Citation: Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139 Hearing dates: 1 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The respondent is to pay the applicant's costs of the proceedings, including of the application for costs. Catchwords: COSTS – appeal against deemed refusal of biodiversity conservation licence applications - appeal upheld and licences granted – applicant seeks costs – proceedings in Class 1 of Court's jurisdiction – no order as to costs unless fair and reasonable in the circumstances – whether the respondent acted unreasonably in the proceedings or circumstances leading up to the commencement of the proceedings – whether the respondent pursued claims that did not have reasonable prospects of success – whether the applicant engaged in disentitling conduct – fair and reasonable to make an order for the costs of the proceedings Legislation Cited: Biodiversity Conservation Act 2016 (NSW) Pt 2, Div 3, ss 2.11, 2.12, 2.13, 2.14 Biodiversity Conservation Regulation 2017 (NSW) Pt 2, Div 3, cll 2.26, 2.27, 2.29, 2.30 Land and Environment Court Rules 2007 (NSW) r 3.7 Cases Cited: Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Kouflidis v Salisbury City Corp (1982) 29 SASR 321 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Kouflidis v Salisbury City Corp (1982) 29 SASR 321 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Texts Cited: Land and Environment Court of New South Wales, Practice Note: Classes 1, 2 and 3 Miscellaneous Appeals, 2018 Category: Costs Parties: Australian Wildlife Ark Limited (Applicant) Secretary, Department of Planning and Environment (Respondent) Representation: Counsel: S Free SC and L Sims (Applicant) A Pickles SC and R Coffey (Respondent)