Reported Decision : 123 LGERA 214 Land and Environment Court of New South Wales CITATION : Carriage v Stockland (Constructors) Pty Ltd and Ors (No 2) [2002] NSWLEC 217 APPLICANT Allan Carriage PARTIES : RESPONDENTS Stockland (Constructors) Pty Ltd and Ors FILE NUMBER(S) : 40863 of 2002 CORAM: Pain J KEY ISSUES: Costs :- security for costs - Aboriginal elder brought proceedings to protect Aboriginal relics and cultural heritage - impecunious applicant - likely that proceedings would be brought to an end if security for costs granted - interlocutory relief granted in part Environmental Planning and Assessment Act 1979 s 123 LEGISLATION CITED: Land and Environment Court Act 1979 s 69(3), s 69(6) National Parks and Wildlife Act 1974 s 176A Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121; Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) ACSR 405; CASES CITED: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32; Town Watch Incorporated v Grafton City Council and Anor (1997) 93 LGERA 401 DATES OF HEARING: 18/11/2002 DATE OF JUDGMENT: 11/20/2002 APPLICANT Mr A Oshlack (agent) SOLICITORS N/A FIRST RESPONDENT Mr T Hale SC with Mr S Brockwell (barrister) SOLICITORS Baker & McKenzie SECOND RESPONDENT LEGAL REPRESENTATIVES: Mr J Whyte (barrister) SOLICITORS National Parks and Wildlife Services (submitting appearance at hearing) THIRD RESPONDENT submitting appearance save as to costs filed FOURTH RESPONDENT Mr A Gemmell (barrister) SOLICITORS Peedoms (submitting appearance at hearing) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40863 of 2002 Pain J 20 November 2002 ALLAN CARRIAGE Applicant v STOCKLAND (CONSTRUCTORS) PTY LTD First Respondent DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE OF NEW SOUTH WALES Second Respondent THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION Third Respondent WOLLONGONG CITY COUNCIL Fourth Respondent Security for Costs Judgment 1 This judgment concerns a security for costs application by the First Respondent in Class 4 proceedings commenced by the Applicant who seeks various orders in relation to work being carried out on the First Respondent's land at Sandon Point. Consent for a major subdivision on that land was granted by this Court in Class 1 proceedings on 8 October 2001 (matters no.10026 - 10030 of 2001). The First Respondent's Notice of Motion seeking security for costs together with the Applicant's Notice of Motion seeking urgent interlocutory orders were heard on 18 November 2002. I have handed down a separate judgment today in relation to the Applicant's Notice of Motion seeking interlocutory orders in which interlocutory relief was partially granted. 2 In these proceedings the Applicant has, amongst other matters, taken action pursuant to s 176A of the National Parks and Wildlife Act 1974 (NPW Act) alleging that there have been breaches of the permit granted by the National Parks and Wildlife Service (NPWS) in relation to works related to stages 2 to 6 of the Sandon Point development on an area known as Lot 235. A key issue in the Applicant's argument is that the operation of that permit depends on the First Respondent obtaining all necessary consents such as development consent for work conducted in the hatched area in Lot 235 which adjoins the subdivision area known as stages 2 – 6. I refused relief in relation to Lot 235. I have granted an interlocutory order in relation to activities on separate land known as the AIR land, where the Applicant's ability to take proceedings is afforded by s 123 of the Environmental Planning and Assessment Act 1979 and s 176A of the NPW Act. 3 There have already been other proceedings taken to challenge different aspects of this development in this Court. Most relevantly for this application were Class 4 proceedings commenced by Allan Carriage on behalf of the Wadi Wadi Coomaditchie Aboriginal Corporation against Stockland (Constructors) Pty Limited and the National Parks and Wildlife Service (matter no (4)0301 of 2002). That case raises issues in relation to compliance with a permit issued under s 90 of the NPW Act by the National Parks and Wildlife Service. In a decision of 19 July 2002 (Carriage v Stockland (Constructors) Pty Limited and Another (No 2) [2002] NSWLEC 121) Talbot J granted security for costs in favour of the First Respondent in the amount of $25,000 to be paid within 14 days and made an order that those proceedings be stayed until security for costs has been provided. I was informed by the parties that no such amount has been provided. Mr Oshlack, the agent for Mr Carriage, also informed me that Mr Carriage intended to seek a review of that decision before this Court. That matter is to be heard next month. Although the application in that matter essentially relates to the same land, I consider that the Class 4 Application brought in this case raises different issues. 4 The First Respondent filed an affidavit by its solicitor, Robert Wilcher, dated 11 November 2002 in support of its Notice of Motion for security for costs in which Mr Wilcher estimates that the costs likely to be incurred in this matter by the First Respondent are $121,900. The Respondent argued that it was inappropriate for the Court to permit the Applicant to get around the orders made by Talbot J for security for costs in Carriage (No 2) by the Applicant bringing another application. 5 Section 69(3) of the Land and Environment Court Act 1979 (the Court Act) provides that "[t]he 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". If security is not given in accordance with such an order, the Court may order that the proceedings be dismissed: s 69(6) of the Court Act. Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32 confirmed that the power to award security for costs under s 69(3) of the Court Act is not to be narrowly construed. 6 In considering whether to make an award for security for costs the Court has a broad discretion. In KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Beazley J stated at 196 that: The law is now settled that the discretion to order security for costs is unfettered and should be exercised having regard to all the circumstances of the case without any predisposition in favour of the award of security 7 Furthermore, the relevant factors in exercising the discretion will depend on the case (citing Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) ACSR 405 at 415 per Cooper J). Although the Court has a broad discretion, Beazley J noted that there are a number of matters that the Court typically takes into account (at 197 - 8), the most relevant of which are: 1. That such applications should be brought promptly … 2. That regard is to be had to the strength and bona fides of the applicant's case are relevant considerations … As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success. … 3. Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim … 4. Whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate … In Yandill Holdings [ Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542] at 545 Clarke J stated the principle in these terms: "[t]he fact that the ordering of security will frustrate the plaintiff's rights to litigate its claim because of its financial condition does not automatically lead to the refusal of an order. Nonetheless it will usually operate as a powerful factor in favour of exercising the court's discretion in the plaintiff's favour." … 8 I do not understand the recent decision in Melville to change these considerations. In Melville the majority in the Court of Appeal held that in exercising the discretion whether to award security for costs the fact an applicant is impecunious does not prevent a security for costs order being made. The exercise of that discretion is nevertheless broad and its application will inevitably vary amongst judges, as demonstrated in Melville where there were different approaches amongst the Court of Appeal Judges in applying that discretion. 9 Mr Carriage has sworn an affidavit in these proceedings stating that he is an Aboriginal elder and office bearer (chairperson) of the Wadi Wadi Coomaditchie Aboriginal Corporation. He states that it is his duty as a traditional owner and leader of his people to strive at all costs to protect this site for the benefit of future generations of his people. He attests that areas of Sandon Point currently being excavated are sacred areas for Aboriginal people. 10 I was informed by Mr Oshlack that the purpose of Mr Carriage commencing these proceedings is to protect Aboriginal relics located in the Sandon Point area, in relation to which he states he is the owner, and in relation to which he has commenced proceedings seeking declarations of interest or ownership in the Equity Division of the Supreme Court. He has also lodged caveats on the titles of some of the First Respondent's land claiming custodial ownership or an equitable interest in the Aboriginal objects on and beneath the surface of the land. It therefore appears that Mr Carriage has a special interest in the subject matter of the proceedings as an individual Aboriginal person and as an elder on behalf of his Aboriginal community. 11 Mr Carriage is apparently impecunious. There was no direct evidence provided to the Court of this, but the First Respondent made that allegation and there has been no attempt to refute that by Mr Carriage. I also note the observations of Talbot J to that effect at par 9 of his judgment in Carriage (No 2). 12 As to whether if I were to make the security for costs order the proceedings would cease, there was no direct submission put by Mr Oshlack, the agent for Mr Carriage, on this matter. I infer from his comments (referred to above at par 3) that Mr Carriage is seeking a review of the security for costs decision by Talbot J rather than attempting to provide the security for costs. I consider it is likely that the proceedings before me will be brought to an end if I am to make a security for costs order in any substantial amount. 13 In my view Mr Carriage will potentially be deprived of a fundamental right if an order for security for costs is awarded in these circumstances. Other judgements to which I have been referred have made the comment that given the broad standing provided in the statutory provisions before me, anyone can bring such proceedings and therefore suggest that an order for security will not necessarily prevent the merits of the controversy from being determined because another person is able to come forward and pursue the case. Such statements seem to me to fail to take into account the substantial practical difficulties of proceeding with litigation before this Court where public law matters are in issue rather than private interests. I do not consider that there is such a pool of potential litigants in the community willing to come before the courts to remedy breaches of public law that a Court can be certain in matters of this kind that another litigant will be in a position to come forward, even if the matter is serious. Furthermore, I agree with the statements expressed by Stein J in Melville at par 24, namely that the fact that there may be other litigants is irrelevant. 14 The First Respondent argued that there was another possible litigant in this case that being Wollongong City Council, the Fourth Respondent. That may be, but to date the Council has said nothing in the interlocutory application before me so that its views are entirely unknown to the Court. 15 The fact that there is open standing provisions now contained in the major environmental planning legislation in New South Wales removes a legal barrier so that it is not generally necessary to prove any particular interest in order to mount a case. In Town Watch Incorporated v Grafton City Council and Anor (1997) 93 LGERA 401 Pearlman J in considering whether to make a security for costs order stated that "[o]ne of the relevant factors for the Court to consider is whether the proceedings have been brought in the public interest". Where, as in this case, the broad interest asserted as the motivation for taking the proceedings is the protection of community property and cultural heritage, in this case, Aboriginal relics, I do not think the Court should lightly make an order for security for costs which, if made, is likely to bar these proceedings. 16 I should also note that while I have not granted interlocutory relief in relation to part of the Applicant's claim in relation to Lot 235 and residue lot 238 as, on the issues put to me I lacked sufficient evidence to be satisfied that interlocutory relief ought to be granted, I did make orders in relation to the AIR land. To the extent I can glean the case as put in interlocutory arguments by the Applicant's agent, it appears there is an arguable case, although no better at this stage, and perhaps more than arguable if better evidence can be brought before the Court. Furthermore, the interlocutory proceedings before me have not aired all the matters which are contained in the amended Class 4 Application and Points of Claim filed by the Applicant. There has been no evidence or argument in relation to those other matters at this stage. I am therefore unable to say for all the matters which Mr Carriage wishes to bring before this Court whether or not he has reasonable prospects of success. 17 In all these circumstances, I exercise the broad discretion that I have under s 69(3) of the Court Act on the basis that I am not prepared to grant the application for the security for costs filed by the First Respondent at this stage of the proceedings. Orders The Court orders that: 1. The First Respondent's Notice of Motion, filed in Court on 13 November 2002, seeking security for costs is dismissed. 2. The question of costs is reserved. 3. The exhibits may be returned. 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