Land and Environment Court of New South Wales CITATION : No Dump Residents Association Inc v Collex Pty Limited (No.3) [2005] NSWLEC 717 APPLICANT No Dump Residents Association Inc PARTIES : RESPONDENT Collex Pty Limited FILE NUMBER(S) : 40888 of 2004 CORAM: Talbot J KEY ISSUES: Costs :- whether public interest litigation - apportionment according to outcome on distinct issues. Clyde Waste Transfer Terminal (Special Provisions) Act 2003 s 4 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 107, s 109 Latoudis v Casey (1990) 170 CLR 534 ; Oshlack v Richmond River Shire Council (1994) 82 LGERA 236; CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 ; Waters v P C Henderson (Australia) Pty Ltd (No 40678 of 1991 Court of Appeal 6 July 1994 unreported) DATES OF HEARING: 02/12/2005 DATE OF JUDGMENT: 12/14/2005 APPLICANT Mr A B Brzoson (Agent) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Ms S A Duggan (Barrister) SOLICITORS Holding Redlich JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 14 December 2005 40888 of 2004 No Dump Residents Association Inc v Collex Pty Limited JUDGMENT 1 Talbot J: Following its success in persuading the Court to dismiss the claim by No Dump Residents Association Inc ("the applicant"), Collex Pty Limited ("the respondent") is seeking an order that the applicant pay its costs of the proceedings. The hearing was in two parts. The first related to the effect of the Clyde Waste Terminal (Special Provisions) Act 2003 ("the Clyde Act") and the ambit of its authorisation for the respondent to carry out the activities of a waste transfer terminal. The second hearing dealt with the respondent's alternative defence that it could rely upon existing use rights to continue the activity in respect of which the applicant was seeking a declaration that the respondent has or is likely to carry out development without development consent. 2 I found that the benefit of s 4 of the Clyde Act did not extend to wagon loading, container storage area and railway tracks No. 20 and 22 that the respondent intended to use in conjunction with the waste transfer terminal authorised by the Act. Initially the respondent relied upon s 109 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") for the protection of its use of the loading and storage area and the railways but ultimately succeeded on the basis of an existing use. I did not characterise the use of the site as a freight transport terminal but rather as a railway undertaking in connection with the movement of traffic by rail. In the result it was not a use permissible with consent (s 109) but a use for a lawful purpose immediately before the coming into force of Auburn Local Environmental Plan 2000 ("LEP 2000") which had the effect of prohibiting the use. Subsequently, amendments to the EPA Act arguably made the use permissible with consent but I held that had no impact upon the continuation of the existing use. 3 The applicant contends that because it succeeded entirely in relation to the issue determined at the first hearing and that the respondent was only successful at the second hearing, after changing its reliance upon the provisions of s 109 to an argument that s 107 of the EPA Act protected its right to continue to carry on the activity, it should not bear the burden of the respondent's costs. Moreover it was a community organisation that was pursuing public interest litigation and therefore the Court should exercise its discretion not to award costs against it. 4 In Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 Stein J characterised the litigation as involving public rather than private rights but held that fact alone was not sufficient to justify displacing the usual order as to costs, namely that the successful party should have the benefit of a costs order. It was his opinion that "something more" was required before the successful party should be denied a costs order in its favour. Based on the facts of that case, Stein J determined that the following matters (as conveniently summarised on appeal to the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 in the joint judgment of Gaudron and Gummow JJ at [20]) were relevant:- (iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna" (iv) In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation. (v) The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public. 5 I have not been satisfied that the subject litigation covered, at least to the same extent, the wider purpose and benefit identified by Stein J. The applicant was unsuccessful in relation to an argument regarding existing use rights in respect of which no wider significant issues arose. Although the applicant represents a significant group of individuals and the immediate community it goes no further than that. The interests, as best I can determine them are predominantly local interests who disagree with the activity at that location. There were no significant issues regarding environmental law generally that had implications for the public at large. The equivalent of "something more" identified by Stein J has not arisen in the present case. I am not prepared to exercise the discretion in respect of costs on the basis that the litigation can be categorised relevantly as in the public interest. 6 Essentially the respondent has succeeded by defending the applicant's claim. The hearing was split as a consequence of the consensual view that adjudication of the issues of statutory construction had the potential to finally determine the whole matter if the respondent's construction was accepted. The defences were in the alternative. They are clearly defined and capable of separate assessment. 7 The principles for exercise of the Court's discretion in relation to costs has been conveniently summarised by the then Chief Justice in Latoudis v Casey (1990) 170 CLR 534 at 542-3 as follows:- It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott [(1981) 53 FLR, at p 111] . Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings. 8 Misconduct in the relevant sense was identified by McHugh J in Oshlack at [69] (footnotes omitted):- "Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. 9 When the respondent made it clear that it was departing from its opening position and intended to ultimately rely on s 107 the applicant acquiesced in the change and indicated it could deal with it. The evidence did not change and the hearing time was not extended. 10 In Waters v P C Henderson (Australia) Pty Ltd (No 40678 of 1991 Court of Appeal 6 July 1994 unreported) Mahoney JA adopted the position that it is often undesirable and inefficient to seek to isolate issues and to make an order for costs in respect of each particular item. His Honour approved of the following note to the Supreme Court Rules:- Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. 11 Priestley JA made an observation that "one consideration to be taken into account is whether the exercise of going into the issues with more particularity than the global approach requires is going to be worthwhile in the sense of the amount of time effort and general lawyer hours spent, when compared to the possible difference in result." 12 Kirby P concurred with Mahoney and Priestley JJA. 13 Applying the above observations in Henderson to the present case there is a clear distinction drawn between the issues decided so that it is practicable to separate them at least in the context of hearing time. On that basis I propose to make an order that the applicant pay the respondent's costs assessed on a global basis except for the actual costs of appearances on hearing days 19, 20 and 21 October 2004. Those days were confined to argument in relation to the issue of statutory construction. In the circumstances each party should pay its own costs in respect of the Notices of Motion relating to costs. Orders 14 I make the following orders:- 1) The applicant pay the respondent's costs except for the actual costs of appearances on 19, 20 and 21 October 2004. 2) Each party pay their own costs in respect of Notices of Motion 18 August 2005 and 23 April 2005. 3) The exhibits may be returned. 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.