Land and Environment Court of New South Wales CITATION : Donnelly & Anor v Capricornia Prospecting Pty Ltd and Ors [2000] NSWLEC 134 APPLICANT: Donnelly & Anor PARTIES : RESPONDENT: Capricornia Prospecting Pty Ltd and Ors. FILE NUMBER(S) : 40243 of 1998 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Security for costs - Motion to extend time for operation of self executing order dismissing proceedings LEGISLATION CITED: CASES CITED: FAI General Insurance Company Limited v Southern Cross Exploration (1988) 165 CLR 268; Paino v Hofbauer (1987) 13 NSWLR 193 DATES OF HEARING: 11th May 2000 EX TEMPORE 05/11/2000 JUDGMENT DATE : APPLICANT: Mr A Oshlack (Agent) SOLICITORS N/A FIRST TO THIRD RESPONDENT: Mr C R Ireland, Solicitor with Mr S Hajjar SOLICITORS Blake Dawson Waldron LEGAL REPRESENTATIVES: FOURTH REPONDENT: N/A FIFTH RESPONDENT: Mr Armstrong, Solicitor SOLICITORS Dept. of Land and Water Conservation JUDGMENT: IN THE LAND AND Matter No . 40243 of 1998 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 11 May 2000 DONNELLY & ANOR. Applicant v CAPRICORNIA PROSPECTING PTY LTD First Respondent ROSS MINING N.L. Second Respondent TIMBARRA GOLD MINES PTY LTD CAN 009 088 359 Third Respondent TENTERFIELD SHIRE COUNCIL Fourth Respondent THE WATER ADMINISTRATION MINISTERIAL CORPORATION Fifth Respondent JUDGMENT Bignold J: 1. In these Class 4 proceedings, there has been a considerable history of interlocutory proceedings. It is necessary that I note at the outset the principal results obtained heretofore so that the present Motion and my adjudication on it may be properly understood. 2. The proceedings were commenced early in 1999. A claim for interlocutory injunction was refused. Soon thereafter, a Motion was brought by the first, second and third Respondents against the Applicants making a number of claims to relief, including an order for security for costs in the proceedings, an order that the Applicants be declared vexatious litigants and an order that the Applicants' agent, Mr Oshlack who appeared for them in the proceedings also be declared a vexatious litigant. 3. His Honour Mr Justice Lloyd, on 5 March 1999, ordered that the Applicants provide security in the sum of $20,000 in the proceedings. He declined the applications to declare either the Applicants or their agent, Mr Oshlack, vexatious litigants. That is the first result of the interlocutory proceedings which must be noted at the outset. 4. Thereafter on 20 December 1999, the Chief Judge determined a Notice of Motion brought by the first, second and third Respondents seeking the dismissal of the proceedings for want of prosecution. By that time, the security that had been fixed on 5 March 1999 had not been provided. Indeed, no monies at that stage had been provided. The Chief Judge on that occasion, ie 20 December 1999, made the following order: Unless the Applicants have provided security for costs as ordered in these proceedings on 5 March 1999 by 5.00 pm on Wednesday 1 March 2000, then these proceedings shall as from that date be dismissed. 5. Unfortunately, neither the Court nor the parties have the benefit of her Honour's reasons for decision which was delivered extempore on that occasion. 6. By Notice of Motion filed in Court on 1 March 2000, the Applicants sought an extension of time from that fixed by the Chief Judge in the order that I have earlier enunciated. On that occasion the Respondents, that is the first, second and third Respondents, did not appear. However, a letter that their Solicitors had written to the Court's Registrar was brought to the Court's attention. That letter advised inter alia, that the Solicitors for the first, second and third Respondents had been instructed not to appear in answer to the Motion which had been fixed for hearing on 8 March 2000 and proffered the respectful opinion that the Court had, in the event, no power to make the orders sought, as the proceedings were terminated by virtue of the Chief Judge's order made on 20 December 1999. 7. In my judgment delivered extempore on 8 March 2000 and for reasons there given, I exercised the Court's power conferred by the Rules of Court and extended the time fixed by the Chief Judge in her orders of 20 December 1999 by substituting for 1 March 2000 the date 1 May 2000. On that occasion, the only opposition to the Motion that had been made was the submission contained in the first, second and third Respondents' Solicitor's letter to the Registrar of the Court that the Court lacked the power. I rejected that submission, being satisfied that the Court had the necessary power, and on the basis of the evidence relied upon in support of the Motion, I granted the relief claimed. On that occasion, I accepted on behalf of the Court a bank cheque in the sum of $7,500 for transmission to the Registrar of the Court as part payment of the security for costs that had been ordered. 8. By notice of Motion filed on 1 May 2000, that is coinciding with the date fixed by me in my orders of 8 March 2000, the Applicants sought a further extension of time from 1 May 2000 to 22 May 2000. This Motion was supported by the Affidavit of Mr Oshlack sworn on 2 May. He also relied upon the earlier Affidavit sworn on 1 March 2000 which I had considered in my adjudication of the Applicants' Motion of that day in my judgment of 8 March 2000. 9. The first, second and third Respondents have opposed the relief claimed in the Motion. However, they have conceded, unlike the position that they had advanced in respect of the Motion determined on 8 March 2000, that the Court is vested with the requisite power to grant the relief claimed. That proper concession flowed from the decision of the High Court of Australia in FAI General Insurance Company Limited v Southern Cross Exploration (1988) 165 CLR 268. The principle therein enunciated was given effect to and applied in the later decision of the Court of Appeal in Paino v Hofbauer (1987) 13 NSWLR 193. 10. In the affidavits in support of the Motion, Mr Oshlack refers to the activities conducted by and on behalf of the Applicants in an endeavour to raise further funds to meet the requirement of the amount fixed for security for costs in the sum of $20,000 and on the hearing of the case today, the Applicant has tendered a further cheque in the sum of $4,200 in favour of the Court in further part payment of the security together with advice from the Australian Conservation Foundation of its payment to the Court in recent times of a cheque for $1,000. A current bank statement as at 9 March 2000 shows a current balance in the campaign funds of just over $1,000. 11. In his affidavit in par 6, Mr Oshlack refers to the then planned fund raising activity for 5 to 7 May, at which he had anticipated that the outstanding funds would be procured. As it turned out, although additional funds were thereby derived, they did not produce the amount that had been hoped for, so that as at the present time today, some $14,000 of the required $20,000 has been paid into Court and there is a present shortfall of some $6,000. 12. It is apparent from the affidavits sworn by Mr Oshlack that the Applicants and the Aboriginal tribes that they are associated with or represent in these proceedings, and the members of them, are economically bereft people, living in very poor conditions— a plight affecting many Aboriginal peoples in Australia of which fact judicial notice in various courts has often been taken. Despite this disadvantage, the affidavit evidence satisfies me that the Applicants and their supporters are diligently seeking to raise the full amount of $20,000 required and their fund raising efforts are continuing. Nonetheless, it remains apparent that the last $5,000 or $6,000 is going to be the hardest to harvest because the support is small and is limited geographically, and obviously the supporters are persons who are also of limited financial means. 13. In truth, contrary to the expectation of Justice Lloyd in his judgment of 5 March 1999, the persons that the present Applicants represent in these proceedings are not persons who could readily raise the money that his Honour assumed could be readily raised. They are not persons of financial substance and Mr Oshlack's affidavits that have been before me both today and on 8 March 2000 demonstrate the poverty stricken lifestyle of the Applicants and their fellow Aboriginal peoples living in the local community. I have no doubt that if this evidence had been before his Honour he would not have assumed, as he did in his judgment of 5 March 2000, that security in the sum of $20,000 was not a heavy impost or a great liability. 14. The evidence has satisfied me that it is a mountainous liability of crushing weight but that the Applicants and their supporters have resourcefully sought to discharge the heavy obligation imposed upon them. However, I cannot put the clock back and re-write history and his Honour's judgment stands and the $20,000 that he fixed for security (and that he assumed would be a light impost, an assumption which has not been vindicated by the subsequent history according to the evidence before me) stands, and it stands as an insuperable hurdle to the Applicants pursuing their claim. 15. Mr Ireland on behalf of the first, second and third Respondents, in opposing the relief on the merits, has not relied upon any evidence of specific detriment or prejudice to his clients by the circumstance of these proceedings remaining alive. However, in a cogent argument, he has urged me to bring to an end the proceedings conformably to the self executing order pronounced by the Chief Judge on 20 December 1999. 16. His argument goes like this. The proceedings must have been adjudged by her Honour to be worthy of dismissal for non prosecution. On that occasion, however, an indulgence of a little more than two months was given for the Applicants to raise the funds. If that were an indulgence so was my decision to extend the time from 1 March 2000 to 1 May 2000, so went the argument. That, I think, is most probably an apt analysis of the orders that were made both on 20 December 1999 by the Chief Judge and by myself on 8 March 2000. However, as Mr Oshlack has pointed out, conditions have changed. When the Chief Judge made her order on 20 December 1999, not a cent had been paid to the Court and some nine months had elapsed since Justice Lloyd's decision requiring the security to be paid. From 20 December 1999 until my decision on 8 March 2000— some two and a half months later— by dint of considerable industry in fund raising on their part, the Applicants provided the Court with part payment of $7,500 and in the six week period since I gave that judgment on 8 March 2000, a further $6,500 has been raised. In my view, the raising of $14,000 since 20 December 1999 represents a considerable effort by the Applicants to raise what I can only regard, in the light of the subsequent evidence, to have been a crippling heavy impost of $20,000. 17. Mr Ireland's argument that "enough is enough" and "two indulgences are enough" does not in my view, adequately recognise what the Applicants have done in raising $14,000 in the intervening period of some four or five months in circumstances where, by comparison in the preceding nine months, no amount had been raised at all towards the security. 18. Just as it is not for me to revisit Justice Lloyd's decision requiring the security for costs in the amount of $20,000 on 5 March 1999, so it is not for me to revisit the Chief Judge's decision of 20 December 1999. However, dismissal for want of prosecution in the context of proceedings where an order for provision of security of costs of $20,000 has been made and remains unsatisfied, strikes me to be an exceptional type of case to order dismissal for want of prosecution, it being obvious that the matter had not been prosecuted because the amount of security had not been paid. 19. In the circumstances, I am satisfied that it would be excessively unfair on the Applicants to not give them a final opportunity to raise the outstanding amount of money. That unfairness is manifest and is to be compared with the suggested unfairness of the proceedings hanging over the head of the first, second and third Respondents. I readily can appreciate that any defendant to pending unfinished Court proceedings, has a shadow hanging over his, her or its head, but other than that obvious fact, as an incident of the litigation process, except for the fact that the first, second and third Respondents are defending a multiplicity of proceedings brought against them by the Applicants, no specific demonstrated prejudice or unfairness or detriment has been asserted. Certainly, there has been no evidence of any such detriment or prejudice adduced on behalf of the first, second and third Respondents. 20. In the course of the presentation of the case, Mr Oshlack has raised the possibility that the Court would accept at the appropriate time any shortfall in the required amount of $20,000 by accepting his personal undertaking to pay the shortfall amount. This is a matter that was not specifically raised in the Notice of Motion but apparently was developed in consequence of Mr Oshlack receiving some correspondence from the first, second and third Respondents' Solicitors, which among other things, proffered the suggestion that the Applicants would consent to the proceedings being dismissed. That offer was rejected. Following up the suggestion contained in the letter that a costs order would be sought against him personally in the proceedings if they were to be continued, Mr Oshlack, on behalf of the Applicants asked the Court to accept his personal undertaking or indemnity in respect of any part of the $20,000 which could not be met by cash payment to the Court. At the moment, that shortfall as earlier mentioned, comes to some $6,000. 21. The form of security for costs is a matter ultimately for the Court to determine, and the acceptance of a personal undertaking or indemnity is not something which necessarily would not qualify as an acceptable form of security. However, when such an offer is made, the Court, acting as a matter of prudence, would want to know the substance or the wherewithal of the person making the offer. Mr Ireland, on behalf of the first, second and third Respondents, informed the Court that it would be unlikely that his clients would accept Mr Oshlack's personal undertaking or indemnity in part satisfaction of the required security. He did not have specific instructions on that matter because it only arose in the course of the hearing today but he referred me to the fact when the matter was before the Chief Judge last December, Mr Oshlack had made an offer of a personal undertaking or indemnity in the sum of $5,000 which Mr Ireland's clients rejected and it was upon that basis that he anticipated that their instructions in relation to the current offer would likewise be rejected. Because the matter has arisen only in the course of today's hearing of the Motion and was not expressly raised in the Motion, I do not think I need finally determine that matter. What I propose to do however, is to provide a final opportunity for the Applicants to fulfil their obligations to provide the security if they desire as they obviously currently do to prosecute the proceedings. In the circumstances, I propose to extend the time until 30 June 2000. By that time-- IRELAND: Your Honour the date sought is I think 22 May. HIS HONOUR: Yes, I know, I am well aware of that Mr Ireland. I propose to extend it to 30 June this year. IRELAND: Sorry, I thought there might have been some mistake. HIS HONOUR: No clerical mistake I can assure you, it is done advisedly to 30 June this year being of the opinion that that provides a realistic and fair opportunity for the Applicants to complete their fundraising activities. If Mr Oshlack, on instructions from his clients, wishes the Court to accept in respect of any shortfall, his personal undertaking, then I would invite him within the period of time that I have extended, that is before 30 June, to make that offer in writing to the Court and substantiating his means to honour it in the event of it being called upon. 22. For all the foregoing reasons therefore, I make the following orders: 1. The time fixed in Order No. 1 of the Court's orders made on 20 December 1999 be further extended by substituting for the initially extended date 1 March 2000 the date 30 June 2000. 2. The bank cheque in the sum of $4,200, which I have received in favour of the Court will become Exhibit 2 and I direct that that it be passed to the Registrar of the Court. 3. The other exhibits are returned. 23. Following further discussion (see transcript) the following additional orders were made: 24. By consent, I make these further orders: 4. The Notice of Motion of the First, Second, Third Respondents dated 27 March 2000 is withdrawn. 5. Leave to file a substitute Motion is granted, making it returnable on Wednesday 5 July 2000 and enabling it to be supported by the affidavits in support of the withdrawn Motion. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.