Land and Environment Court of New South Wales CITATION : Melville v Craig Nowlan & Associates & Anor [2001] NSWLEC 109 APPLICANT Melville PARTIES : RESPONDENT Craig Nowlan & Associates & Anor FILE NUMBER(S) : 40011 of 2001 CORAM: Cowdroy J KEY ISSUES: Costs :- notice of motion for security for costs - public interest litigation - impecunious applicant - whether applicant should be ordered to provide security - purpose of security to ensure compensation for costs if respondent successful - order for security made LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123 Land and Environment Court Act 1979 s 69 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; DJL v Central Authority (2000) 201 CLR 226; Oshlack v Richmond River Council (1998) 193 CLR 72 ; CASES CITED: Razorback Environment Protection Society Inc v Wollondilly Council & Anor [1999] NSWLEC 8; Ryde Pool Action Group Inc v Ryde City Council [1999] NSWLEC 96; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (Pearlman J, NSWLEC, 26 November 1998, unreported); Timbarra Protection Coalition Inc v Ross Mining NL & Ors (Talbot J, NSWLEC, 5 May 1998, unreported) ; Town Watch Incorporated v Grafton City Council (1997) 93 LGERA 401 DATES OF HEARING: 30/5/01 DATE OF JUDGMENT: 06/18/2001 APPLICANT Mr J Johnson (Barrister) SOLICITORS Wroth Wall FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr S Titus (Solicitor) SOLICITORS Verekers SECOND RESPONDENT n/a JUDGMENT: IN THE LAND AND MATTER No. 40027 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 18/06/01 Judith Melville Applicant v Craig Nowlan & Associates Pty Limited First Respondent Maclean Shire Council Second Respondent JUDGMENT 1. By application class four filed on 23 January 2001 the applicant seeks a declaration and consequential orders that development consent 2000/0343 ("the consent") granted by the second respondent on 13 September 2000 to the first respondent is void. 2. By notice of motion filed on 7 May 2001 the first respondent seeks an order that the applicant provide security for the payment of costs of the first respondent in the sum of $23,500 or alternatively such sum as determined by the Court. A further order is sought that the proceedings be stayed pending the payment of such security, and that the applicant pay the costs of the motion. 3. The consent has been granted in respect of the development of a rural workers dwelling on a property known as 'Kangali' located at 267 School Road Palmers Island ("the site") owned by Geoffrey William Good Leviny. The challenge by the applicant, as appears from the amended points of claim, alleges that the second respondent ("the council") did not possess power to grant the application pursuant to the MacLean Local Environmental Plan 1992 ("the LEP"). Pursuant to cl 16 of the LEP, the council shall not consent to the erection of a rural workers dwelling on land to which the clause relates unless certain criteria have been satisfied. The applicant alleges that such criteria has not been satisfied and further that the decision of the council in granting consent was unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). 4. The applicant is a pensioner residing in Yamba, some distance from the site. The applicant is a member, but not an office holder, in an organisation known as the Yamba Angourie Wooloweyah Community Association. At a public meeting of that Association held on 26 February 2001 the applicant's proceedings were discussed. In the course of the meeting the applicant said:- I do not have the sort of money required to fight a court case. I will gratefully accept any donations from anyone present at the meeting. Anything you can afford, even 50 cents. 5. The Court is satisfied that the applicant is impecunious. In the event that the first respondent is successful in the proceedings, the applicant would not be able to meet any order for costs in view of her financial circumstances. The Court also accepts the submission from her counsel that the proceedings have been instituted as public interest litigation pursuant to s 123 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 6. The Court is therefore required to consider the tension that inevitably exists between an impecunious litigant who wishes to proceed with litigation in the public interest and the interests of the first respondent who may ultimately be required to bear the costs of litigation even if successful. Power to grant costs 7. This Court has power to grant an order for security for costs. Section s 69(2)(3) of the Land and Environment Court Act 1979 ("the LEC Act") provides:- The Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party. Section 69(4) of the LEC Act provides that any security so awarded shall be given in such amount, and in such manner and form as the Court directs. 8. The applicant disputes that the Court has an inherent power to award costs and relies upon the decision of the High Court of Australia in DJL v Central Authority (2000) 201 CLR 226 in support of its contention. In view of the express statutory provision enabling this Court to make an order for security it is unnecessary however to consider this issue. It should, however, be noted that Pt 6 rule 1 of the Land and Environment Court Rules 1996 ("the LEC rules") adopts Pt 53 of the Supreme Court Rules 1970 ("the SC Rules"). Pt 53 of the SC Rules contains provisions enabling the Supreme Court of New South Wales to order security for costs. A combination of Part 6 rule 1 the LEC rules and Part 53 of the SC Rules, together with the power provided by s 23 of the LEC Act to the Court to make orders in matters in respect of which it has jurisdiction 'to make orders of such kinds, including interlocutory orders as the Court thinks appropriate' would provide the Court with an auxiliary potential power to make an order for security for costs. 9. The evidence establishes that the professional legal costs of the hearing are estimated to be approximately $12,000 together with disbursements which include counsel's fees. Mr Leveny has been advised by his solicitors that legal costs, including disbursements may amount to $15,000. Authorities 10. In Oshlack v Richmond River Council (1998) 193 CLR 72 Kirby J said at 113:- Inherent in the foregoing legislative innovation is a parliamentary conclusion that it is in the public interest that such individuals and groups be able to engage the jurisdiction of the Land and Environment Court, although they have no personal, financial or like interest to do so … the removal of the barrier to standing might amount to an empty gesture if the public character of an applicant's proceedings could in no circumstances be taken into account in disposing of the costs of such proceedings, either where they succeeded or (as here) where they failed. 11. When determining an application for costs a Court is obliged to consider the existence of any special circumstances exist sufficient to justify a departure from the usual rule that costs will generally follow the event. Such 'special circumstances' will include the fact that the litigation is 'public interest litigation' (see Kirby J in Oshlack at 115; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (Pearlman J, NSWLEC, 26 November 1998, unreported)). However such factor may not be sufficient by itself to warrant an exception to the usual practice that a successful party will or should be entitled to recover its costs (Timbarra Protection Coalition Inc v Ross Mining NL & Ors (Talbot J, NSWLEC, 5 May 1998, unreported). The guiding principle is that costs are compensatory (see Latoudis v Casey (1990) CLR 534). There is no reason, in principle, to treat an application for security for costs differently to an application for costs. 12. The Court has been referred by each of the parties to decisions concerning applications for security for costs. In Razorback Environment Protection Society Inc v Wollondilly Council & Anor [1999] NSWLEC 8 Lloyd J reviewed the principles concerning security for costs applications in public interest litigation and determined that an order for security for costs should be made despite characterisation of the proceedings as 'public interest' litigation. 13. The applicant has referred the Court to several authorities, such as F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306; Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (1994) 83 LGERA 107; Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310. These authorities do not displace the principles repeatedly followed in this Court as referred to in Razorback. 14. Each application for security for costs must be considered on its merits. Whilst public interest litigation per se may be insufficient to justify a departure from the usual rule, other factors may exist from which the Court can conclude that an order for security should not be made. Those cases may, for example, involve an apparent breach of the planning laws or conduct which suggests that, on its merits, the applicant has established a strong prima facie case for relief (see Ryde Pool Action Group Inc v Ryde City Council [1999] NSWLEC 96). 15. Accordingly I concur with the observations of Pearlman J in Town Watch Incorporated v Grafton City Council (1997) 93 LGERA 401 at 405 that the mere fact that the proceedings are brought pursuant to the 'open standing' provision of s 123 of the EP&A Act to remedy an alleged breach of that Act 'is not, of itself, sufficient to refuse to grant security for costs'. In Razorback Lloyd J at par [20] observed that the matters to be considered on an application for security for costs include 'the nature of the litigation and the strength of the applicant's case'. At this preliminary stage of the proceedings it is not possible to assess the strength of the applicant's case, and in the absence of evidence that the application has strong prospects of success, the respondent is entitled to be provided with security to avoid the risk of an order for costs in his favour will be unfulfilled. 16. The amount of costs claimed by the first respondent by way of security, namely $23,500 is not justified by any calculation. However the affidavit of Stephen John Titus, solicitor for the first respondent establishes the foundation for the assessment of costs of at least $12,500 costs. 17. Accordingly, the Court is satisfied that an initial order for security for costs should be made in the sum of $12,500, the adequacy of such amount can be reviewed as the litigation continues. Orders 19. The Court orders: 1. The applicant give security for the costs of the first respondent of and incidental to the proceedings in the amount of $12,500 in a form satisfactory to the Registrar. 2. This notice of motion be adjourned to enable the first respondent to seek a further order for security in the event that the amount ordered as security is exhausted prior to or during the conduct of the proceedings. 3. The proceedings be stayed until the security in order 1 is given. 4. The question of costs of the notice of motion be reserved pending determination of the proceedings or pending further application. 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.