Bradford, J v Minister for Aboriginal Affairs (NSW) and Hillig, P [2006] NSWLEC 545

Land and Environment Court of New South Wales

CITATION : Bradford, J v Minister for Aboriginal Affairs (NSW) and Hillig, P [2006] NSWLEC 545

APPLICANT Jeffrey Bradford

PARTIES : FIRST RESPONDENT Minister for Aboriginal Affairs (NSW)

SECOND RESPONDENT Peter Hillig

FILE NUMBER(S) : 40389 of 2006

CORAM: Talbot J

KEY ISSUES: Costs :- costs thrown away - amendment of application

LEGISLATION CITED: Aboriginal Land Rights Act 1983

DATES OF HEARING: 21/07/2006, 04/08/2006 (written submissions)

DATE OF JUDGMENT: 08/30/2006

APPLICANT Mr J Emmet (barrister) SOLICITORS Norton White Solicitors

FIRST RESPONDENT LEGAL REPRESENTATIVES: Ms A Sapienza (solicitor) SOLICITORS Crown Solicitors

SECOND RESPONDENT submitting SOLICITORS Patrick Woods & Company

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

30 August 2006

40389 of 2006 Jeffrey Bradford v Minister for Aboriginal Affairs (NSW) and Peter Hillig

JUDGMENT 1 Talbot J: By Notice of Motion 14 July 2006 the first respondent is seeking an order that the applicant pay the first respondent's costs thrown away as a result of the applicant's amended application Class 4 filed 29 June 2006. The amount of costs claimed is $1,516.75 plus GST or as agreed or assessed. 2 The proceedings are presently stayed until a date 7 days after final determination of proceedings No. 2482 of 2006 in the Equity Division of the Supreme Court. 3 On 15 May 2006, the applicant filed a Class 4 application ("the application") and an affidavit of Jeffrey Bradford. The application made a number of claims against the conduct of the first respondent in appointing an administrator to the Darkinjung Local Aboriginal Land Council ("DLALC"), of which the applicant was formerly the Chairman. By the application, the applicant alleged against the first respondent, amongst other things, breach of the rules of procedural fairness and failure to take into account relevant considerations. The relief sought by the application included, among other things, orders setting aside the appointment of the administrator, the third respondent, an order that the instrument of appointment of the third respondent is ultra vires and invalid, and orders restraining the first respondent from acting pursuant to s 222 of the Aboriginal Land Rights Act 1983 to appoint an administrator to the DLALC until the first respondent has taken certain steps and costs. 4 At the first directions hearing on 16 June 2006, the applicant foreshadowed that amendments would be made to the application and a non sealed copy of the amended application Class 4 was delivered to the first respondent on 27 June 2006. A sealed copy of the amended application was served on 7 July 2006. 5 According to the first respondent the amended application is wholly different to the original application. It no longer makes any claims against the conduct of the first respondent. The only relief that it seeks against the first respondent is costs. 6 On 21 July 2006, I made directions ordering the parties to file and serve any evidence and submissions in relation the Notice of Motion 14 July 2006. The first respondent complied with the direction by filing submissions on 4 August 2006. No evidence or submissions have been received from the applicant who was directed to file and serve them by 11 August 2006. 7 The first respondent identifies the relevant circumstances in its written submissions in support of an application for an order that the applicant pay its costs as follows:- (a) The Amended Application bears no relationship to the Application. In particular, there are no longer any claims made as against the conduct of the First Respondent and the only relief now sought against the First Respondent is costs. The First Respondent is presently considering his ongoing involvement in the proceeding and reserves his right to make an application in this regard; (b) The claims made against the First Respondent by the Application included allegations of denial of procedural fairness and failure to take into account relevant considerations. The defence of such claims requires early consideration of the extensive evidence likely to be required and the involvement of counsel at an early stage to advise on these issues; (c) As a result of the orders made by Talbot J on 21 July 2006, the substantive proceeding has been stood over until after the final determination of a Supreme Court Proceeding involving the Applicant and the Third Respondent, but not the First Respondent. It is therefore unclear when the present matter will be determined and final costs orders, which may address the First Respondent's concerns, made. 8 It is self evident on the face of the Amended Application Class 4 that the first respondent has lost the benefit of taking instructions in respect of and considering the original application. In particular the evidence filed by the applicant in support of the original application is now out of date and there is no relationship to the amended claim. 9 Affidavit evidence filed in support of the Notice of Motion filed by the first respondent justifies a claim for $1,366.75 professional fees for work undertaken by the solicitor employed by the first respondent, who has the carriage of the matter, and $150.00 for counsel's fees. 10 I am satisfied in the circumstances that the first respondent is entitled to an order for its costs in accordance with order 1 in the Notice of Motion and also an order for costs in relation to the Notice of Motion itself. 11 I therefore make the following orders:- 1. That the applicant pay the first respondent's costs thrown away as a result of the applicant's amended application filed 29 June 2006, fixed in the sum of $1,516.75 plus GST. 2. That the applicant pay the first respondent's costs of this Notice of Motion, either in an amount fixed by the Court or as agreed or assessed.