KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38

Land and Environment Court New South Wales

Medium Neutral Citation: KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38 Hearing dates: 3 April 2020 Date of orders: 29 April 2020 Decision date: 29 April 2020 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [115] Catchwords: JOINDER - application for judicial review of a determination by the Independent Planning Commission to refuse State Significant Development consent to a proposed coal mine - joinder application by non-party pursuant to r 6.27 of the Uniform Civil Procedure Rules 2005 - whether appropriate to join opponent of the proposed mine as a party to the judicial review proceedings - application for joinder on the basis that it is necessary for the determination of all matters in dispute in the proceedings that the joinder applicant be joined as a contradictor - present sole respondent (the Commission) has filed a submitting appearance - applicant for joinder played a substantial role in opposing the proposed coal mine for which the applicant for judicial review sought State Significant Development consent - necessity for an active contradictor - desirability of permitting joinder on the basis of public interest issues arising from grounds pleaded in support of judicial review proceedings - whether participation as amicus curiae should be considered - applicant for joinder expressly disavows participation as amicus - not appropriate to consider possibility of participation as an amicus - appropriate to order joinder in the public interest - joinder ordered COSTS - judicial review applicant seeks protective costs order if applicant for joinder joined as a party - consideration of cases cited in support of the making of such a protective costs order - cases cited do not provide support for a protective costs order as the facts and circumstances of the two cases cited are irrelevant to the present circumstances - protective costs order refused. COSTS - joinder applicant seeks costs of joinder proceedings - presumption that costs follow the event - joinder applicant successful in joinder application - applicant in judicial review proceedings ordered to pay the costs of the applicant for joinder of the joinder proceedings Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 8.8 and 8.12 Land and Environment Court Act 1979, s 20 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, cl 14(2) Trustee Act 1925, s 81 Uniform Civil Procedure Rules 2005, rr 6.24, 6.27, 42.1 and 59.3 Cases Cited: Arakella Pty Ltd v Paton (2004) 60 NSWLR 334 Armidale Dumaresq Council v Attorney-General (NSW) (No 1) [2007] NSWSC 557 Attorney-General (Cth) v Alinta (2008) 233 CLR 542 Australian Conservation Foundation Inc v Forestry Commission (1988) 19 FCR 127 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 Australian Paper Manufacturers v Commonwealth (1990) 64 ALJR 530 Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Breen v Williams [1994] 35 NSWLR 522 Burnie Port Corporation Pty ltd v Bank of Western Australia Ltd (2002) 1 Tas R 249 Chriss v Williams [1988] NSWCA 22 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Freeman v Attorney-General (NSW) [1973] 1 NSWLR 729 Karimbla Constructions Services (NSW) Pty Ltd v Premier of New South Wales [2019] NSWLEC 76 London Passenger Transport Board v Moscrop [1942] AC 332 Macquarie Bank Limited v Lin [2002] 2 Qd. R. 188 National Trustees Executors & Agency Co of Australasia Ltd v Attorney-General (Vic) [1973] VR 610 Murraylink Transmission Company Pty Ltd v National Electricity Market Management Company Ltd (2003) VSC 51 Nation v Kingborough Council (2003) 12 Tas R 141 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Perpetual Trustee Co Ltd v Godsall [1979] 2 NSWLR 785 Pfizer Corp v Commissioner of Patents (2006) 67 IPR 646; [2006] FCA 164 Phelps v Western Mining Corporation Pty Ltd (1978) 33 FLR 327 Priest v West (2011) 35 CLR 225 at [35] Re Baker [1961] VR 641 Re Great Eastern Cleaning Services Pty Ltd and the Companies Act [1978] 2 NSWLR 278 Ross v Lane Cove Council [2014] 86 NSWLR 34 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 Sportsbet v State of Victoria [2011] FCA 170 The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 United States Tobacco Co. v Minister for Consumer Affairs (1988) 20 FCR 520 Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 5th ed, 2015, pages 632-633 Category: Procedural and other rulings Parties: KEPCO Bylong Australia Pty Ltd (Applicant) Independent Planning Commission (Respondent) Bylong Valley Protection Alliance (Applicant for Joinder) Representation: Counsel: