Land and Environment Court of New South Wales CITATION: Weal V Bathurst City Council & Anor [1999] NSWLEC 216 PARTIES APPLICANT Weal RESPONDENTS Bathurst City Council & Anor NUMBER: 40179 of 1998 CORAM: Bignold J KEY ISSUES: Costs :- Costs- Class 4 proceedings challenging development consent-Application fails. Whether unsuccessful Applicant should pay costs. LEGISLATION CITED: s 69 Land and Environment Court Act 1979 DATES OF HEARING: 09/13/1999 DATE OF JUDGMENT DELIVERY: 09/14/1999 APPLICANT Mr T S Hale, Barrister SOLICITORS Writer Ryan Boesen FIRST RESPONDENT Mr W R Davison SC LEGAL REPRESENTATIVES: SOLICITORS McIntosh McPhillamy SECOND RESPONDENT Mr D R Parry, Barrister SOLICITORS Houston Dearn O'Connor JUDGMENT: TABLE OF CONTENTS A. INTRODUCTION 1-5 B. SHOULD THERE BE A COSTS ORDER AGAINST THE UNCUSSESSFUL APPLICANT? 6-15 C. SHOULD EACH RESPONDENT OBTAIN A COSTS ORDER AGAINST THE APPLICANT? 16-18 D. ORDERS 19 IN THE LAND AND Matter No . 40179 of 1998 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 14 September 1999 WILLIAM JAMES WEAL Applicant v BATHURST CITY COUNCIL First Respondent TWENTIETH SUPER PACE NOMINEES PTY LTD Trading As SPECIALIZED CONTAINER TRANSPORT Second Respondent JUDGMENT ON COSTS Bignold J: A. INTRODUCTION 1. In my reasons for judgment published on 11 June 1999, dismissing the Applicant's challenge to the validity of the development consent granted by the first Respondent (the Council) to the second Respondent, I reserved the question of costs. 2. Each of the Respondents seeks an order for costs against the Applicant. 3. The Applicant resists the costs orders sought against him, arguing that each party should pay its own costs of the litigation. Alternatively, the Applicant submits that if a costs order be made against him, it should be confined to an order for only one set of costs. 4. In advancing his principal argument that each party should pay its own costs, the Applicant concedes that the usual practice of the Court in class 4 proceedings such as the present judicial review proceedings is for costs to follow the event. 5. However, he says that in the present case, the proceedings should be characterised as public interest litigation and on that account, the Court should exercise its discretion not to make any costs order against the Applicant. B. SHOULD THERE BE A COSTS ORDER AGAINST THE UNSUCCESSFUL APPLICANT? 6. As my earlier reasons for judgment indicate, the Applicant's challenge to the validity of the development consent was based upon the following seven separate grounds: (i.) failure to consider relevant matters; (ii.) consideration of irrelevant matters; (iii.) Wednesbury unreasonableness; (iv.) partiality or bias; (v.) unauthorised delegation; (vi.) fettering discretion; and (vii.) lack of certainty and finality in the development consent. 7. The Applicant's challenge failed on each ground pleaded, for the reasons given in my earlier judgment. 8. In such circumstances, the usual order as to costs would ordinarily apply. However, the Applicant resists the application of the "usual order" on the ground that he brought the proceedings (not only on his own behalf as a nearby resident to the approved development site, but on behalf of a number of other nearby residents of the Wollaroi Estate (comprising some 40 rural/residential allotments) and of 20 other residences fronting White Rock Road, Kelso which abuts part of the development site. 9. In his written submissions, Counsel for the Applicant submitted that the Court would properly characterise the litigation as public interest litigation, particularly having regard to the following factors: (a) the proceedings were brought for the benefit and on behalf of residents in the White Rock Road area. The applicant was not a property owner but lived in the area; (b) the community had a legitimate concern and interest in the subject matter of the proceedings since it was they who would be affected; (c) the matter was a matter of considerable controversy; (d) the development was on council owned land for a development in which the council was vastly interested. It had selected the second respondent as the appropriate applicant for development consent. In that sense the council was not approaching consideration of the development application with the usual degree of neutrality; (e) one of the residents concerns was the lack of proper assessment of the noise impacts. The residents were justified in those concerns having regard to the concerns expressed by the EPA and its criticism of the consideration of these matters; (f) the quality of the assessment of the impacts was on any view not thorough; (g) the consideration and conditions of consent gave rise to justifiable concerns by residents. 10. Senior Counsel for the Council and Counsel for the second Respondent challenge this suggested characterisation of the proceedings. Rather, they submit that the proceedings were brought to protect the proprietary interests of the nearby residents who apprehended that their residences and the enjoyment of their amenity would be seriously degraded by the carrying out of the proposed development. 11. Before adjudicating upon the question of the proper characterisation of the proceedings, it will be helpful to recall the nature of the Court's discretion in relation to costs, as stated in the following passages from my judgment in Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act NSWLEC 123: The Court is vested with a very broad discretion in relation to costs by s69 of the Land and Environment Court Act 1979 (the LEC Act) subsection (2) providing as follows: Subject to the rules and subject to any other Act : costs are in the discretion of the Court; and the Court may determine by whom and to what extent costs are to be paid. This statutory provision is substantially the same as that contained in s76(1)(a) and (b) of the Supreme Court Act 1970 , and both provisions can be traced back to Order 55 of the Rules of Court contained in the Supreme Court of Judicature Act 1875 (UK): see Oshlack v Richmond River Council (1998) 193CLR 72 at 95/96 per McHugh J. In Oshlack, the High Court divided in its opinion on the factors that were relevant to the judicial exercise of the statutory costs power and in particular, upon the questions (i) whether the characterisation of the relevant proceedings as "public interest litigation" was a relevant factor, and (ii) whether the "costs follow the event" approach had become so universal as to supplant the exercise of discretion. The majority judgments were given by the Gaudron and Gummow JJ (jointly) and Kirby J. The minority judgments were given by Brennan CJ and McHugh J. Concerning the question of whether the public interest nature of the litigation was a relevant factor in the exercise of the Court's costs power, Brennan CJ held (at 75) that the fact that the appellant brought the present proceedings in the public interest for the protection of endangered fauna does not provide a sufficient reason in itself for refusing the successful respondent its costs in the present case. McHugh J held (at 91/2): …the fact that the proceedings can be characterised as public interest litigation is irrelevant to the question whether the Court should depart from the usual order the costs follow the event. The joint judgment of Gaudron and Gummow JJ (at 84) thought the characterisation of litigation as public interest litigation was a nebulous concept unless given further content of a legally normative nature. They also held that it also tended to distract attention from the legal issue which was at stake in the appeal, namely whether the subject matter, the scope and purpose of s69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be definitely extraneous to any objects the legislature could have had in view in enacting s69. Their Honour's negative answer to this question is given in the following passage at 91: Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that something more than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs ( Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605). Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case. Kirby J concluded (at 127) that it was open to Stein J to conclude that a departure from the ordinary compensatory rule for costs was appropriate given his classification of the proceedings as having been brought in the public interest (being a public interest that was permitted and facilitated by s123 of the Environmental Planning and Assessment Act 1979 ) Earlier (at 124), Kirby J had concluded that although it was difficult to define with precision, what is meant by public interest litigation a series of cases in Australia, England, New Zealand and Canada had demonstrated a discrete approach taken to costs in circumstances where the courts had concluded that a litigant had properly brought proceedings to advance a legitimate public interest, had contributed to the proper understanding of the law in question and had involved no private gain. The other question upon which the High Court divided in Oshlack, namely the place in the exercise of discretion of the costs follow the event approach, has greater relevance to the present case. Here, the majority held: (T)here is no absolute rule with respect to the exercise of the power conferred by a provision such as s69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party…at 88 per Gaudron and Gumow JJ, But the compensatory principle cannot be treated as an absolute principle: at 121 per Kirby J .Earlier, Gaudron and Gummow JJ had held at 86 and 87: At bottom in the present case is the question whether rules of practice with respect to similarly expressed provisions in legislation applicable in other species of litigation have so hardened that they look like rules of law (McDermott v The King (1948) 76 CLR 501 at 514.), which render irrelevant to the exercise of the discretion conferred by s 69 those considerations to which the Council successfully objected in the Court of Appeal. Implicit in the submissions for the Council is the proposition that, so strongly determinative of a discretion conferred in broad terms by a provision such as s 69 of the Court Act are the considerations (i) that the court must determine the matter from the perspective of the successful party, (ii) that the successful party ordinarily should be compensated by the unsuccessful party for the expense of the litigation, and (iii) that the successful party will be deprived of costs only by disentitling conduct, that they are to be displaced only by specific legislative provision. Examples of such legislation would include that construed in Gray v Lord Ashburton ([1917] AC 26.) and Tekmat Investments Pty Ltd v Ward ((1988) 65 LGRA 444) so as to permit an order which burdened a successful party with the costs of others. The Council's proposition should not be accepted. The minority judgment of McHugh J (concurred in by the Chief Justice) analyses (at 96 and 97) the jurisprudential basis for the important principle commonly referred to as the usual order as to costs which his Honour expounds in the following passage at 97: The expression the usual order as to costs embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party (Latoudis (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.). If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. Ultimately, and with respect, I would understand the different judgments in Oshlack to diverge on the question of the status or place of the costs follow the event approach to the exercise of judicial discretion on costs, as a consequence of their divergence on the question of the relevance in the exercise of discretion of the trial judge's classification of the proceedings as involving public interest litigation . 12. Having regard to the foregoing discussion, I would not, myself, regard the present proceedings as involving " public interest " litigation. The proceedings obviously involved considerations of public law rather than private law, but this fact does not give them the character of " public interest litigation ". 13. The Applicant's separate grounds for legal challenge of the development consent granted by the Council did not involve the elucidation of the meaning of new law, rather they involved conventional judicial review grounds for challenging administrative action. 14. In these circumstances, there is no justification for departing from the usual costs rule reflecting the outcome of the litigation and the need to compensate parties who have successfully defended proceedings brought against them. 15. Accordingly, I would exercise the Court's costs discretion by applying the usual rule that costs should follow the event. C. SHOULD EACH RESPONDENT OBTAIN A COSTS ORDER AGAINST THE APPLICANT? 16. The Applicant did not develop his alternative submission that there should be only one set of costs. 17. Although it may be appropriate in certain cases involving multiple defendants to limit a costs order to a single set of costs (Hamill v Byron Shire Council (1998) 98 LGERA 400), I do not think the present case is such a case. Here the Applicant brought the proceedings against both Respondents. Each Respondent was separately represented and their interests were not the same. Although the Council principally defended its impugned actions, the second Respondent which had obtained the development consent, also defended its validity and raised in the pleadings a separate discretionary defence. 18. In all the circumstances, I think each of the successful Respondents should receive an or0der for costs. D. ORDERS 19. For all the foregoing reasons, I order the Applicant to pay each of the Respondents' costs in the sum agreed, or failing agreement, as assessed. 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