Land and Environment Court of New South Wales CITATION : Carriage v Stockland Development Pty Limited & Ors [2004] NSWLEC 321 Allan Carriage (A) Stockland Development Pty Ltd (1R) Director-General of National Parks & Wildlife Service of NSW (2R) PARTIES : Wollongong City Council (3R) Brad and Julie Smith (8R, 9R) Steven and Sue Keogh (10R, 11R) Kevin and Gayle Love (12R, 13R) FILE NUMBER(S) : 40187 of 2004 CORAM: McClellan CJ KEY ISSUES: Costs :- In class 4 Interlocutory application LEGISLATION CITED: CASES CITED: DATES OF HEARING: 8 April 2004 EX TEMPORE 04/08/2004 JUDGMENT DATE : A Oshlack (A) Indigenous Justice Advocacy Network (A) J Soars (1R, 7R-13R) Baker & McKenzie (Solicitors 1R, 7R-13R) LEGAL REPRESENTATIVES: A Pearman (2R) Department of Environment & Conservation (2R) A Seton (3R) Messrs Marsdens (Solicitors 3R) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40187/04 McCLELLAN J THURSDAY 8 APRIL 2004 CARRIAGE Applicant v STOCKLAND DEVELOPMENT PTY LTD & ORS (formerly Stockland (Constructors) Pty Ltd) Respondent Judgment Introduction 1 HIS HONOUR: This matter comes before me in relation to the first respondent's and the seventh to thirteenth respondents' application for security for costs. The present proceedings are but one of a number of matters in this Court and in the Supreme Court which have been prosecuted by the applicant, Mr Carriage, in relation to a large area of land at Sandon Point in Bulli. 2 As I understand the position, the land has been the subject of a commission of inquiry, which considered its future potential. Thereafter, the applicant in the motion, Stockland Development Pty Limited, the first respondent in the proceedings, has been pursuing development of some parts of the land. The development, as I understand it, involves conventional subdivision with the prospect of dwellings being erected on the subdivided parcels of land. 3 The proceedings were commenced in the conventional way and a further amended application has been filed which is supported by points of claim. The points of claim are not elegantly drafted and, if the matter proceeds, will require some significant revision. However, to the extent that the matter can be clarified by submission, the present application has been argued on the basis that there are fundamentally four matters, which are advanced by the applicant. 4 I should indicate that the substance of the proceedings is that the Director-General of National Parks and Wildlife Service of New South Wales, who has been joined as the second respondent, in granting consent pursuant to s 90 of the National Parks and Wildlife Act 1974 (NSW), which permits destruction of Aboriginal artefacts in certain circumstances, has not validly exercised her power. A second matter is identified in the further amended application where, in paragraphs 3 and 4, relief is sought in relation to an allegation that before the relevant consents were granted, Aboriginal artefacts were damaged or otherwise destroyed by work that was undertaken on the site. 5 As I have indicated, the matter has been debated on the basis that there are four essential claims. Firstly, it is submitted that the Director-General failed in her obligation to provide procedural fairness to the applicant before granting the relevant consents. As I understand it, that allegation turns upon the fact that in a letter dated 19 February 2004 the Department of Environment and Conservation (NSW), through its relevant officer, confirmed that before making a decision in relation to the grant of any consent, the Department would adhere to its policies in relation to consultation with Aboriginal people. The relevant policies are identified as the Cultural Heritage Community Consultation Policy and the Cultural Heritage Information Policy. 6 It is submitted, and from the material before me I do not understand it to be denied, that, in relation to the consents under challenge, those policies were not followed after 19 February 2004. As I understand it, it will be submitted that the Director-General discharged her obligation in relation to procedural fairness having regard to the extent to which consultation had previously taken place and by reason of the opportunity which was afforded the Aboriginal people, identified in a letter to Mr Kennedy of the Northern Illawarra Aboriginal Cooperative, that letter being dated 16 February 2004. In that letter it was indicated that a further consultation period had been granted until 29 February 2004 in relation to Stockland's application for an extension of its existing consents. 7 In my opinion, the applicant's case in relation to this limb is arguable, and I do not understand at present that it is presently met by the material contained in the letter of 16 February. That letter appears to be directed to the question of an extension of an existing consent, which I would infer is the consent of the first respondent to subdivide the land whereas the consents under challenge in these proceedings relate, inter alia, to consents granted to the individual property owners. 8 The second matter advanced by the applicant is that the development application which authorises the development of the individual lots was not processed as an application for integrated development pursuant to s 91 of the Environmental Planning and Assessment Act 1979 (NSW). The factual assertion is apparently correct, but the difficulty which the applicant will face in relation to this matter is found in the conclusions of Lloyd J in Maule v Liporoni [2002] 122 LGERA 140. In that case, his Honour found that a failure to process an application as integrated development did not have the affect that any consent which was granted was invalild. The applicant in the present matter submits that the case was wrongly decided. It would be inappropriate for me to reach a conclusion in relation to that submission which has not been fully argued. Nevertheless, his Honour's decision is a significant impediment to success on that aspect of the matter in this Court. 9 The third matter which is put forward by the applicant is that at the time the Director-General granted the relevant consents there were, under investigation by the National Parks and Wildlife Service allegations that the persons to whom the consents were granted had previously breached s 90 of the National Parks and Wildlife Act and damaged or destroyed relevant artefacts. 10 It is submitted that the Director-General should have had regard to the fact that those investigations were under way before granting consent because otherwise evidence which may have established a breach of the law might be lost. Although arguable, I do not consider this argument to have any significant prospect of success. The purpose for which an application for a consent is to be granted has to do with future conduct. I would not consider the prospect of gathering evidence for a prosecution of a breach of the law, at least at this stage, to be a matter relevant to the exercise of the Director-General's discretion. 11 The final matter is an allegation that, before the consents were granted, there were breaches of the law and that ultimately relief should be granted remedying those breaches. From the material available to me it would seem this argument may have prospects of success although what, if any, order might ultimately be made, having regard to the fact that consents were ultimately granted, is a different matter. 12 An application for security must be considered having regard to the principles defined by the Court of Appeal in Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82. In the present case, the applicant gives unchallenged evidence of his involvement in endeavours to ensure that the subject land does not, by reason of development, become diminished in its significance as an Aboriginal place or Aboriginal artefacts on the land are unnecessarily damaged or destroyed. 13 The evidence is that Mr Carriage is a pensioner, has no assets, but is an Elder and claims to be the Traditional Owner of the Wadi Wadi Coomaditchie Nation. His evidence is that the subject land is traditional country of his people and forms part of the sacred Kuradji Burial and Tool Making Site. In his evidence, he says that the Aboriginal site at Sandon Point is very sacred to his people. He says: "It is one of the most significant spiritual places to the Traditional People. Iit is our life. They really and truly do not know what they are doing or have done to my people. They are not aware of the harm they are doing to themselves by this continuing desecration." 14 Mr Carriage gives evidence that, as a Traditional Owner, it is his duty to do all in his power to protect Kuradji. He says: "As long as I have breath, I will continue the struggle to save Sandon Point, not only for us Aboriginal but for all the future generations in our community, Indigenous and non-Indigenous." 15 I am satisfied that Mr Carriage should be accepted in relation to these matters, indeed I do not understand the respondents to suggest otherwise. Accordingly, although he is able to come to this Court by reason of the liberal standing provisions in 176A of the National Parks and Wildlife Act 1974, his relationship with the land is more significant than would be the case in relation to many persons bringing proceedings relying upon those liberal standing provisions. 16 It is submitted that the Court should have regard to the fact that Mr Carriage is a member of an Aboriginal corporation and also a member of a tribe in which there would be other persons with similar concerns about the subject site. It is submitted that the Court should assume that there may be other persons, or indeed the corporation may have moneys, which could support litigation of this type. However, there is nothing before me to suggest that the corporation has any assets of any significance, or that any other member of the tribe would have financial resources beyond those of Mr Carriage. Accordingly, I do not consider that the Court should approach this matter on the basis that there may be other persons capable of funding the litigation. It is also submitted that although the individual property owners in the present case have been supported to this point by Stockland Development Pty Limited, there is no evidence that this will continue into the future. Accordingly, the Court is invited to assess this application on the basis that a continuation of the proceedings may bring a hardship to individuals who may, if ultimately they succeed in the action, suffer a financial loss in the event that Mr Carriage is unable to meet an order for costs. 17 Although the Court has no evidence as to what may happen in the future, it is plain that the proceedings will be defended by Stockland Development Pty Limited, and it is difficult to identify issues which would not be addressed with appropriate submissions by counsel for that corporation. It is accepted that Stockland Development is a substantial corporation and is able to adequately defend the matter. Accordingly, although it is possible that individual property holders may suffer, I consider this to be unlikely and I certainly do not understand that there will be a necessity for any of those persons to engage separate representation in these proceedings. 18 In Melville, Heydon J identified the factors relevant to the exercise of the Court's discretion in relation to applications for security. Looking at those matters, I am satisfied that the current proceedings are regular on their face. They are bona fide and have been properly brought. They have also been brought by a person within the jurisdiction of the Court who, as I have indicated, has a special relationship with the land. 19 I am also satisfied that the applicant, Mr Carriage, is impecunious, and I will approach the matter upon the assumption that he may have difficulties in meeting an order for costs if one is made against him. I am also satisfied that, having regard to the evidence before me, that, if an order for security is made, it is likely, indeed most likely, that these proceedings could not be continued and accordingly the opportunity to litigate the matters to which I have referred would be lost. If this was to occur, I am satisfied that Mr Carriage would have lost an opportunity to have the Court review a decision which has real and significant impact upon both Mr Carriage and the other members of the tribe of which he is an elder. I am also satisfied that in relation to the claim of a denial of procedural fairness and a claim of a breach of s 90 of the National Parks and Wildlife Act before the consents were granted, that the applicant has a case which is arguable and has some prospects of success. 20 The other two matters I consider, although raised bona fide, have limited prospects of success. Weighing all those matters, I am satisfied that it would be inappropriate for me to exercise my discretion to make an order for security at this stage of these proceedings. 21 In identifying the way in which Mr Carriage puts his case, I have endeavoured to capture the essence of the matters raised in the present pleadings which were further articulated in the course of argument. Mr Oshlak, who appears for Mr Carriage, acknowledged that there is a need for the points of claim to be amended to properly identify the matters which are raised in the litigation. I am satisfied that this needs to be done. It may be that when the matter has been properly pleaded, the respondents will more clearly be able to address the arguments which are finally raised and, at that stage, may determine that, having regard to the matters finally pleaded, a further application for security may be appropriate. I should not be understood as encouraging such an application to be made, but it is appropriate that I acknowledge that my understanding of the case to be articulated is not at the moment adequately reflected in the pleadings and a matter such as this should be determined having regard to the pleadings which the applicant ultimately seeks to advance in pursuance of his case. 22 However, having regard to the matters raised before me, and the debate which has taken place, I am satisfied that I should dismiss the present 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.