Land and Environment Court of New South Wales CITATION : Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [No. 2] [2007] NSWLEC 271 APPLICANT Roy "Dootch" Kennedy PARTIES : FIRST RESPONDENT Director-General of the Department of Environment and Conservation SECOND RESPONDENT Stockland Development Pty Limited FILE NUMBER(S) : 40421 of 2005 CORAM: Jagot J KEY ISSUES: Costs :- Whether proceedings brought in public interest - whether additional or special circumstances present - whether usual order as to costs should be made - proportional costs order made Environmental Planning and Assessment Act 1979 s 5A LEGISLATION CITED: Land and Environment Court Act 1979 s 69 National Parks and Wildlife Act 1974 s 90 Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718; Carriage v Stockland (Constructors) Pty Ltd and Others (2003) 125 LGERA 414; Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365; Kennedy on Behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No 2) (2002) 122 LGERA 84; Oshlack v Richmond River Council (1998) 193 CLR 72; CASES CITED: Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236; Plumb v Penrith City Council and Another (2003) 126 LGERA 109; Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456; Save the Ridge Inc (Association No A03329) v Commonwealth and Another (2006) 230 ALR 411; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254; South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114 DATES OF HEARING: 2 April 2007 DATE OF JUDGMENT: 23 May 2007 APPICANT Mr A Oshlack (agent) SOLICITOR N/A FIRST RESPONDENT LEGAL REPRESENTATIVES: Ms R Pepper SOLICITORS Department of Environment and Climate Change SECOND RESPONDENT No appearance SOLICITORS Herbert Geer & Rundle JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 23 May 2007 40421 of 2005 ROY "DOOTCH" KENNEDY Applicant DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION First Respondent STOCKLAND DEVELOPMENT PTY LIMITED Second Respondent JUDGMENT Jagot J: 1 On 26 July 2006 I delivered my reasons for decision with respect to the applicant's Class 4 application (Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456). The Class 4 application, as amended, sought declarations that a consent granted by the first respondent (the Director-General of National Parks and Wildlife) to the second respondent (Stockland Developments Pty Ltd) under s 90 of the National Parks and Wildlife Act 1974 was invalid or, if valid, that Stockland had failed to comply with two conditions of that development consent, and associated orders restraining Stockland from relying on the consent. I dismissed the challenge to the validity of the consent. I found a threatened breach of special condition 3 of the consent. I determined, in the circumstances, not to make any declaration or order with respect to that threatened breach other than an order for the interim storage of the Aboriginal objects collected and salvaged under earlier consents. 2 The Director-General (but not Stockland) has sought an order that the applicant pay the Director-General's costs of the proceedings as agreed or assessed. 3 The primary submission on behalf of the Director-General was that, insofar as the claim related to validity of the consent, the Director-General had been wholly successful. Accordingly, an order for costs in favour of the Director-General should be made. 4 The applicant's agent submitted that there should be no costs order in the Director-General's favour, having regard to the following considerations: (1) The applicant is an Aboriginal person of the Yuin/Monaro people, associated by bloodline with the Wadi Wadi group. The Wadi Wadi group occupied the Sandon Point area. The applicant also holds various positions including Deputy Chairman of the Wadi Wadi Coomaditchi Aboriginal Corporation and spokesperson of the Sandon Point Aboriginal Tent Embassy. Accordingly, he has a particular role and interest in preserving Aboriginal cultural heritage within the Sandon Point area. (2) Sandon Point is a highly significant area of Aboriginal cultural heritage, sacred to the Wadi Wadi people. Recently, part of the Sandon Point area was declared an Aboriginal place, with a formal ceremony scheduled for 1 May 2007. The applicant had assisted the Department of Environment and Conservation with respect to these arrangements. (3) By reason of these matters the applicant was subject to a duty to take action to protect the Aboriginal cultural heritage of Sandon Point. (4) It was contrary to the public interest for the Director-General to authorise destruction of items of Aboriginal cultural heritage within this most significant area. In particular, subsequent to the decision of Talbot J in Kennedy on Behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No 2) (2002) 122 LGERA 84, the significance of the area had become more apparent. (5) The applicant had not taken the proceedings for personal gain, but solely to protect the broader public interest represented by preserving the Aboriginal cultural heritage values of Sandon Point. Accordingly, the circumstances had far greater significance than many proceedings of this nature. (6) The applicant had not been wholly unsuccessful, as the conditions of consent relating to the keeping place for items of Aboriginal cultural heritage had not been satisfied. The applicant was thus justified in bringing the proceedings to ensure compliance with the consent conditions, which the Director-General had not effectively enforced. The applicant had been directly involved in facilitating compliance with the consent conditions, thereby providing assistance to the Director-General. Insofar as the challenge to validity of the consent was concerned, the applicant's points were important and arguable, the applicant having effectively failed for reasons associated with the onus of proof. (7) The Director-General was the public official responsible for conserving Aboriginal cultural heritage because all Aboriginal objects had been vested in the Crown, not Aboriginal people. The Director-General had inappropriately authorised the destruction of an important part of that heritage yet was seeking an order for costs against an Aboriginal person who had taken steps to protect that heritage. In contrast, Stockland was not seeking an order for costs. (8) Aboriginal people had been subject to historical repression and discrimination, continued by the authorisation of the systematic destruction of their cultural heritage. The making of a costs order against the applicant would be racial discrimination, as it would deter other Aboriginal people from seeking to protect their rights. (9) A costs order would have no utility, as the applicant was a person of limited means receiving a basic Centrelink payment. He lives at the Sandon Point Aboriginal Tent Embassy, without running water or electricity. The circumstances disclosed an imbalance when the position of the applicant was compared to that of the Director-General. (10) The Director-General's conduct in the litigation was inappropriate. In particular, time had been wasted while documents for which the applicant had called were located. (11) The facts disclosed special circumstances very similar to those considered by Stein J in Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236. Stein J's decision not to order the applicant to pay the respondents' costs in that matter had been upheld by the High Court in Oshlack v Richmond River Counci l (1998) 193 CLR 72. 5 Counsel for the Director-General submitted in reply that: (1) The mere description of proceedings as "public interest litigation" was insufficient to give rise to special circumstances displacing the usual position that costs follow the event. (2) In Kennedy on Behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No 2) (2002) 122 LGERA 84, Talbot J had dealt with the same applicant, the same land and similar issues. Talbot J held that: [14] It was not part of the adjudication to elucidate or determine the meaning of the relevant legislation. There was no significant issue raised beyond the facts found in the particular circumstances of the case. [15] Mr Kennedy was a representative of a group who, as Aboriginal persons, had a particular interest in the artefacts the subjects of the consents. That in itself is not sufficient, in my opinion, to characterise the litigation as public interest litigation or to give rise to sufficient special circumstances to justify a departure from the ordinary practice as to the making of a costs order in favour of a successful party. (3) Similar observations were made in Carriage v Stockland (Constructors) Pty Ltd and Others (2003) 125 LGERA 414 at [28] – [29]. (4) The proceedings did not raise any issue beyond the immediate facts and did not elucidate or determine the meaning of any legislation. (5) The claims against the Director-General were wholly unarguable. (6) There was no disentitling conduct on the part of the Director-General. The applicant's submission to the contrary was untenable. (7) The consent in question (consent 2130) covered largely the same ground as three earlier consents (consents 1288, 1289 and 1427) and thus the case raised no new issues. (8) The applicant's ability to pay any costs the subject of an order is not a relevant consideration. 6 Section 69 of the Land and Environment Court Act 1979 provides that costs are in the discretion of the Court and the Court may determine by whom and to what extent costs are to be paid. The general approach to the exercise of discretion under s 69 was identified by McHugh J in Oshlack v Richmond River Shire Council (1998) 193 CLR 72 (albeit in dissent). That is, the broad discretion under s 69 is not unfettered. The discretion must be exercised judicially. The usual order as to costs "embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation" (at [67]). 7 In the first instance decision in Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236, Stein J traced the history of decisions in this Court about circumstances that may displace the usual principle that costs follow the event. Stein J declined to make a costs order against the unsuccessful applicant having regard to the public interest character of the litigation, the fact that the litigation involved the construction and certainty of the consent and the meaning of relatively new legislative provisions, the eminently arguable character of the claims (albeit unsuccessful) and the absence of any motive on the part of the applicant other than to uphold environmental laws. 8 On appeal from the Court of Appeal (which overturned the first instance decision), the High Court determined that Stein J's reasons did not disclose consideration of any matter "definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act" ((1998) 193 CLR 72 at [49]). In so doing, Gaudron and Gummow JJ (in the majority with Kirby J) said that: (1) Section 69 should be liberally construed (at [21] and [45]). (2) The issue was not whether the litigation was properly characterised as "public interest" litigation, but whether the matters considered by Stein J were definitely extraneous to the objects of the legislature in enacting s 69(at [31]). (3) "There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party" (at [40]). (4) In identifying the factors additional to the character of the litigation as involving public rather than private rights, Stein J's discretion had not miscarried (at [49]). 9 Subsequent decisions demonstrate the caution with which courts approach departures from the principle that a successful party is generally entitled to an order for costs in its favour. 10 In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254, Pearlman J found that "the litigation was brought to advance a public interest in matters in which there was significant public concern" (at [25]). However, the applicant had been wholly unsuccessful and no other factors warranted departure from the ordinary principle that costs should follow the event. Accordingly, Pearlman J made the usual order as to costs. 11 On refusing an application for special leave in South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114, the High Court rejected an argument that there should be no order as to costs on the basis that the proceedings were public interest litigation. In so doing, Kirby J observed that it would be wrong to assume that the decision in Oshlack v Richmond River Shire Council "requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule" (at [5]), particularly where the relevant legislation did not include an open standing provision (at [6]). 12 Pearlman J revisited the issue in Plumb v Penrith City Council and Another (2003) 126 LGERA 109. The Council (but not the party with the benefit of the development consent) claimed costs, having successfully defended a challenge to the validity of the consent on the ground that a species impact statement was required to accompany the development application. The applicant had succeeded in establishing that the site contained the endangered ecological community, but otherwise had failed. Pearlman J accepted that there was a high level of public interest in the proposed development and that Mr Plumb had nothing to gain personally from the proceedings. Further, the proceedings had a wider significance than the immediate facts as they involved the interpretation and application of the eight part test then contained in s 5A of the Environmental Planning and Assessment Act 1979. Pearlman J also observed that the Council had actively defended the proceedings when the claim was limited to a lack of power to determine the development application. These factors and the arguable nature of the claim led Pearlman J to decide that there were special circumstances warranting a departure from the usual principle that costs follow the event. 13 In Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365, the party with the benefit of the development consent sought an order for costs against the applicant. The applicant had unsuccessfully claimed orders restraining the Council from repaying certain s 94 funds to that party when the Council determined not to proceed with roadwork as contemplated when it granted the consent. Lloyd J accepted that the proceedings involved broader pubic interest considerations and observed that: [18] In Council of Municipality of Botany v the Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 416–417; 76 LGRA 213 at 217, Gummow J stated that the public interest nature of the litigation alone does not deprive the successful party of an order for costs. His Honour's reasoning was followed and adopted by Northrop, Burchett and Hill JJ in Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 at 188; 99 LGERA 140 at 142. This principle has also been recognised by this Court on several occasions; for example, in Rundle (1989) 69 LGRA 21 at 27 and Oshlack per Stein J at first instance (at 241), approved by Gaudron and Gummow JJ in the High Court (at 91). [19] Thus, whilst the public interest nature of the litigation may be a relevant consideration on the question of costs, it is necessary that there be some additional or special circumstances before the Court may depart from the usual order as to costs by making no order. 14 Lloyd J held that the proceedings "raised significant and novel questions, requiring the Court to interpret and apply s 94(6) of the EP&A Act in considering the extent of a council's obligations in applying monetary contributions and whether, and in what circumstances, a council could refund those contributions" (at [21]). Lloyd J therefore determined that he should depart from the usual principle and made no order as to costs. 15 In Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718, Lloyd J held that the usual order as to costs should be made. He accepted that the proceedings involved the public interest, but held that no other circumstance existed to warrant departure from the ordinary principle. Moreover, the consent authority and party with the benefit of the consent were both properly joined and ran cases that did not overlap. Lloyd J ordered the applicant to pay the costs of both respondents'. 16 In Save the Ridge Inc (Association No A03329) v Commonwealth and Another (2006) 230 ALR 411 the Full Court of the Federal Court determined that the proceedings involved two questions of statutory construction which, although not unimportant, were limited in application (at [13]). The Full Court also observed that, in Oshlack v Richmond River Shire Council, Kirby J alone had relied on the open standing provisions as generally relevant to the exercise of the costs discretion (at [17]). The Full Court held that there were insufficient reasons to depart from "the ordinary rule that the unsuccessful party should bear the costs of the appeal" (at [21]). 17 I wish to make four observations immediately about the submissions on behalf of the applicant. 18 First, the compensatory objective underlying the usual order as to costs is inconsistent with the submission of the applicant's agent that the making of a costs order would be discriminatory. 19 Secondly, the applicant's capacity to satisfy any costs order is immaterial. To deprive a successful party of an otherwise appropriate order for costs by reason of the other party's impecuniosity would be inconsistent with the compensatory objective. For the same reason, I do not consider the imbalance between the applicant's resources and those of the State available to the Director-General to be material to the exercise of discretion under s 69. 20 Thirdly, the legislation vests responsibility for decisions about consents to destroy Aboriginal objects in the Director-General. The applicant's objection to that statutory scheme and the merits of the Director-General's decision to grant the consent with respect to Sandon Point is not material to the exercise of the discretion with respect to costs. 21 Fourthly, I do not accept the submission on the applicant's behalf that the Director-General engaged in disentitling conduct in the litigation. The Director-General was a necessary party given the nature of the applicant's claims challenging the validity of the consent. The Director-General's role in the hearing was generally directed to the issues concerning the decision to grant the consent. The Director-General tendered evidence and made submissions appropriate to be put before the Court to facilitate resolution of the issues in dispute. The Director-General's conduct in the litigation did not lead to any inappropriate wasting of time. As and when the applicant's agent amended the claim and made calls for documents, the Director-General responded. As I held in my substantive decision Ms Ewins' evidence did not support the applicant's grounds of alleged invalidity, but appropriately disclosed the administrative process by which the application had been determined. 22 I accept that the proceedings involved the public interest. The development of Sandon Point and the associated potential impacts on Aboriginal cultural heritage was a significant issue as the documents and other evidence in the substantive proceedings disclosed. I accept that the applicant brought the proceedings absent any motive for personal gain other than in the spiritual and cultural sense identified by the applicant's agent. It is also true that the applicant was not wholly unsuccessful. I found a threatened breach of special conditions 2 and 3 of the consent because an Aboriginal keeping place had not been provided as required by those conditions. The orders I made requiring an interim keeping place pending the completion of the negotiations required by special condition 3 remedied this breach. If the applicant's claims had been limited to enforcement of special conditions 2 and 3, there can be little doubt that the applicant would not be exposed to a costs order. This is so despite my decision not to grant any injunction restraining Stockland from relying on the consent pending compliance with special conditions 2 and 3. 23 The applicant's claims were not limited to enforcement of special conditions 2 and 3, however. The applicant challenged the validity of the consent. The challenge to validity was distinct from the allegations of breach of the special conditions and involved a material part of the evidence and hearing. Although I have accepted that the grant of the consent raised issues of public importance, the claims involved conventional administrative law grounds. Resolution of the claims did not raise any novel issue with respect to the construction or operation of the legislation. While the claims were not untenable, the applicant was wholly unsuccessful. 24 I am not satisfied that this matter is analogous to the facts underlying the decision of Stein J in Oshlack v Richmond River Shire Council. That matter involved novel issues about the construction and interpretation of important aspects of legislation of broad application (in common with the decisions in Plumb and Engadine Area Traffic Action Group). The present proceedings involved a challenge to the validity of a particular consent on conventional administrative law grounds. While the proceedings were important to the applicant and the interests he represented and had a broader public interest character, the grounds of challenge did not raise any particularly significant issue about the general operation of the legislation. The claims were resolved on the evidence and within the established parameters of judicial review. The factors that I have found in the applicant's favour do not support displacement of the principle that a successful party should generally obtain the benefit of an order for costs. 25 It is necessary that I take into account the fact that the applicant established a threatened breach of the special conditions. Although the Director-General focused in the hearing on the challenge to validity, part of the Director-General's costs would relate to the claims of breach. For example, the Director-General's submissions referred to costs incurred with respect to a motion for interlocutory relief (seeking orders against Stockland only). The Director-General also attended mentions after I delivered my substantive decision as part of the process of compliance with my orders about an interim keeping place. I am satisfied that it is an appropriate exercise of discretion in all of the circumstances to order the applicant to pay a proportion of the Director-General's costs. Having regard to the circumstances I have identified above, I consider that the applicant should be ordered to pay 50% of the Director-General's costs as agreed or assessed. 26 Accordingly, I order the applicant to pay 50% of the first respondent's costs as agreed or assessed. **************************** 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.