Jaspers Brush Airport Action Group Inc v South Coast Recreational Flying Club Inc [2013] NSWLEC 43

Land and Environment Court New South Wales

Medium Neutral Citation: Jaspers Brush Airport Action Group Inc v South Coast Recreational Flying Club Inc [2013] NSWLEC 43 Hearing dates: 3 April 2013 Decision date: 03 April 2013 Jurisdiction: Class 4 Before: Craig J Decision: Orders as set out at [8] Catchwords: COSTS - security for costs - consent by applicant to provide security - security to be provided in stages - directions for conduct of the proceedings given Category: Procedural and other rulings Parties: Jaspers Brush Airport Action Group Incorporated (Applicant)

South Coast Recreational Flying Club Incorporated (First Respondent)

Shoalhaven City Council (Second Respondent) Representation: M McMahon, solicitor (Applicant) P Moggach, solicitor (Respondents) M E McMahon & Associates (Applicant) RMB Lawyers (Respondents) File Number(s): 41205 of 2012

EX TEMPORE Judgment 1Before me today is a notice of motion filed by the respondents to these proceedings, seeking an order that the applicant provide security for their costs of these proceedings. Assuming such an order is made, the respondents also seek an order that proceedings be stayed until security for the amount sought has been provided to the Registrar. 2The parties have now resolved that motion. They have agreed that an order should be made, the terms of which are set out in short minutes described as a Consent Order which effectively proposes the provision of security for costs in two stages. The first stage is the present stage which contemplates costs likely to be incurred by the first and second respondents up to the time when pleadings are concluded and all evidence served. The sum agreed to be provided by the applicant for this stage is the sum of $35,000. 3The proposed orders contemplate that the second stage will be the preparation for and conduct of the hearing. The provision of a further sum or security for that sum is then to be the subject of further discussion between them. Order 4 of the proposed consent orders does not contemplate that there will be an issue as to whether any further sum should be required by way of security: rather it contemplates only that the quantum of that sum will be the subject of agreement or determination by the Court. The terms of proposed order 4 have been the subject of discussion between the parties and the effect of what is intended, as I have summarised it, has been confirmed by them. 4The motion having been so resolved, it has then been necessary to make directions for the preparation of the matter for hearing. This is proposed to be done in two stages. The first is to learn, by a direction for the preparation of points of claim and points of defence, just what the issues in the proceedings are. Mr Moggach, who has appeared for the respondents, has indicated that once the claim is formally pleaded and points of defence are filed, assuming that sufficient particulars are contained in the points of claim to identify factual issues, there is a distinct possibility that the parties will be able to agree upon a number of facts relevant to the claims which the applicant propounds, leaving only limited issues to be the subject of any contested evidence. 5For his part Mr McMahon, who appears for the applicant, has indicated that the course proposed is appropriate, although it may be that he would seek not only to lead evidence from lay witnesses, directed to an existing use or continuing use issue, but also may seek to adduce expert evidence from a consultant town planner. Whether or not evidence of the latter kind is appropriate in the present proceedings can only be determined once the issues have been identified. 6For these reasons I have indicated that I propose to give directions requiring "pleadings" and the preparation of an agreed statement of facts, so far as such a statement can be prepared, and also for the preparation of a bundle of documents which, as I presently understand the matter, would constitute a significant portion of the evidence likely to be given. I say that because these proceedings are essentially judicial review proceedings challenging two consents which the Council has given for the use of land at Jaspers Brush for an airfield and for facilities associated with that use by a flying club including the provision of flying instruction to its members. 7The second set of directions will be made when the matter next comes before the Court and will be based upon the need for any further evidence which the parties seek to adduce. While leave would not be required to prepare lay evidence, perhaps directed to existing use or continuing use issues, any application for expert evidence to be adduced will need to be considered at that time. The orders and directions I propose to give will require that any application to adduce expert evidence should be made at the next directions hearing. 8In light of these reasons, the orders that I make are these: 1. In resolution of the respondents' notice of motion filed on 22 February 2013, by consent I make the following orders: (i) The applicant is to provide security for the estimated costs of the respondents for that part of the proceedings up to the commencement of the hearing ("the First Stage") in the sum of $35,000 in a form satisfactory to the Registrar. (ii) The proceedings are stayed until Order (1) has been complied with. (iii) If the security referred to in Order (1) is not provided within twenty eight (28) days, the summons is dismissed with costs. (iv) If Order (i) is complied with, the applicant is to provide further security for the costs of the Respondents for the proceedings ("the Second Stage") in an amount to be determined by agreement or, failing agreement, by the Court. The costs of the Second Stage include the costs of the hearing and any costs properly incurred by the Respondents in the First Stage in excess of the sum of $35,000. (v) The Respondents must serve a statement of the quantum of security for costs sought for the Second Stage within fourteen (14) days after service of the last pleadings or evidence as directed by the Court. (vi) Within seven (7) days of the service of the statement referred to in Order (6), the applicant must serve notice on the respondents whether it accepts the quantum of the security for costs noted in that statement. (vii) If there is no agreement between the parties the Respondents may apply to relist the proceedings on two (2) days notice for the question of the quantum of security of costs for the Second Stage to be determined. (viii) The costs of the motion be costs in the cause. 2. For the purpose of preparing the matter for hearing I make the following orders and give the following directions: (i) Direct that the applicant file its points of claim by 5.00pm on Friday 19 April 2013 (ii) Direct that the respondents file their points of defence by 5.00pm on Friday 10 May 2013 (iii) By Friday 24 May 2013 the parties must: (a) so far as is possible, prepare a statement of facts agreed by each of them and relevant to the issues identified in the pleadings (b) so far as is possible, prepare a bundle of documents agreed between them as relevant to the issues to be determined (iv) Stand over the proceedings to a second directions hearing on Friday 31 May 2013. (v) At the directions hearing on 31 May the parties must hand to the List Judge a brief summary of the issues to be determined and the evidence proposed by each of them to address those issues. (vi) Any notice of motion seeking leave to rely upon expert evidence is to be made returnable on Friday 31 May 2013. (vii) Reserve liberty to the parties to apply on three working days' notice.