> Land and Environment Court of New South Wales CITATION : Dobbie v Water Administration Ministerial Corporation [2003] NSWLEC 418 APPLICANT PARTIES : John William Dobbie RESPONDENT Water Administration Ministerial Corporation FILE NUMBER(S) : 40238; 10230 of 2003 CORAM: Pain J KEY ISSUES: Costs :- Class 4 proceedings - costs follow the event LEGISLATION CITED: Land and Environment Court Act s 69 Gee v Port Stephens Council [2003] NSWLEC 60 (17 October 2003); CASES CITED: Latoudis v Casey (1990) 170 CLR 535 ; Oshlack v Richmond River Council (1998) 193 CLR 72 DATES OF HEARING: 27/10/03 EX TEMPORE JUDGMENT DATE : 10/29/2003 APPLICANT Mr D Wilson SOLICITOR Susan Hill LEGAL REPRESENTATIVES: RESPONDENT Mr Howard (solicitor) SOLICITOR Department of Infrastructure Planning and Natural Resources JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40238 of 2003 10230 of 2003 Pain J 29 October 2003 JOHN WILLIAM DOBBIE Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent Judgment 1. I will now make my decision on costs. Given that I am dismissing a Class 4 application which raised a number of points of law that were also common to the related Class 1 proceedings (matter no 10230 of 2003), I should note that it was appropriate that the Applicant did commence Class 4 proceedings because it was seeking declaratory relief which simply is not available in Class 1 proceedings. 2. Miss Hill for the Applicant urged me to view this as a mixed Class 1 and Class 4 matter. I do not accept that characterisation. Essentially I dealt with a Class 4 matter and that is the matter which I am dismissing today. 3. Latoudis v Casey (1990) 170 CLR 535 is authority for the proposition that costs awards are not punitive but rather compensatory. I adopt the submissions of Mr Howard that, under s 69 of the Land and Environment Court Act 1979, the Court does have a broad discretion as to costs. In Oshlack v Richmond River Council (1998) 193 CLR 72, it was emphasised by the High Court that there should not be an automatic application of that discretion in favour of a successful defendant. In the situation here, where the Applicant has been unsuccessful and I have dismissed the application and the Class 4 proceedings are at an end, it seems to me it is appropriate that I award costs in favour of the Respondent. Orders 4. The Court makes the following orders: 1. The Applicant is to pay the Respondent's costs in relation to matter no 40238 of 2003. 2. No order as to costs is made in relation to the preliminary question of law raised in matter no 10230 of 2003. 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.