Upper Hunter Sustainable Industries Association Inc v Mach Energy Australia Pty Ltd [2017] NSWLEC 41

Land and Environment Court New South Wales

Medium Neutral Citation: Upper Hunter Sustainable Industries Association Inc v Mach Energy Australia Pty Ltd [2017] NSWLEC 41 Hearing dates: 7 April 2017 Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Class 4 Before: Pain J Decision: See par 22 Catchwords: COSTS – application for security for costs – security for costs ordered by consent – whether further order to dismiss proceedings if security not provided should be made – order for dismissal not granted Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 ss 75W, 123 Uniform Civil Procedure Rules 2005 rr 42.21, 59.11 Cases Cited: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18 Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271 Category: Costs Parties: Upper Hunter Sustainable Industries Association Inc (Applicant) Mach Energy Australia Pty Ltd (Respondent) Representation: COUNSEL: A Stafford (Applicant) M Brennan, solicitor (Respondent)

SOLICITORS: Beatty Legal (Applicant) Ashurst (Respondent) File Number(s): 2017/86798

Judgment 1. The Applicant Upper Hunter Sustainable Industries Association Inc has commenced proceedings which it identifies as judicial review in relation to Mach Energy Australia Pty Ltd the Respondent's mining project in the Hunter Valley. The Applicant alleges that the relevant development consent was not physically commenced within the time required by the consent. The relief sought is a declaration that the relevant consent has lapsed. Such proceedings would more usually be considered to be civil enforcement in nature given reliance on s 123 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Respondent has filed a Notice of Motion dated 31 March 2017 seeking an order for security for costs. The Applicant has agreed to an order for security for costs by providing a bank guarantee for $150,000 by 21 April 2017. That order (Order 1) has been made. I reserved my decision on whether a second order (Order 2) sought by the Respondent ought to be made and that is the subject of this judgment. That proposed order is in the following terms: 2. In the event that security is not provided by the Applicant pursuant to Order 1 above, the proceedings are dismissed with costs in favour of the Respondent. 1. Security for costs orders are provided for under r 42.21 of the Uniform Civil Procedure Rules 2005 (UCPR) which states: 42.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant: … (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or … the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. (1A) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant: (a) the prospects of success or merits of the proceedings, (b) the genuineness of the proceedings, (c) the impecuniosity of the plaintiff, (d) whether the plaintiff's impecuniosity is attributable to the defendant's conduct, (e) whether the plaintiff is effectively in the position of a defendant, (f) whether an order for security for costs would stifle the proceedings, (g) whether the proceedings involves a matter of public importance, (h) whether there has been an admission or payment in court, (i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant, (j) the costs of the proceedings, (k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute, (l) the timing of the application for security for costs, (m) whether an order for costs made against the plaintiff would be enforceable within Australia, (n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff. … (2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct. (3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed. ... 1. I have not had to determine whether to make a security for costs order in light of the Applicant's offer to the Respondent which has been accepted. It is useful to consider the terms of r 42.21(1A) in determining whether to make the additional order sought in the interests of justice. Subsection (2) provides that a court can impose an order for security for costs on such terms as it sees fit. Factors in r 42.21(1A) of most relevance are sub-cls (a), (b), (c), (f), (g), (i) and (j). 2. If these are judicial review proceedings, r 59.11 is also relevant. It states: 59.11 Security for costs (1) A plaintiff is not to be required to provide security for costs in respect of judicial review proceedings except in exceptional circumstances. (2) Where a plaintiff: (a) invokes an open standing provision, or (b) commences representative proceedings, the court is not to treat the plaintiff as bringing proceedings for the benefit of a third party for the purposes of considering whether exceptional circumstances exist. (3) This rule has effect despite rule 42.21.