Land and Environment Court New South Wales

• Medium Neutral Citation: Olofsson v Minister for Primary Industries [2011] NSWLEC 137
• Hearing dates: 8 August 2011
• Decision date: 11 August 2011
• Jurisdiction: Class 4
• Before: Pain J

Decision

1. The maximum costs payable in these proceedings by the Applicant to the First and Fourth Respondents, and by the First and Fourth Respondents to the Applicant, is the sum of $5,000.

2. The maximum costs payable in these proceedings by the Applicant to the Second and Third Respondents, and by the Second and Third Respondents to the Applicant, is the sum of $5,000.

3. The Applicant's costs of the Notice of Motion filed 18 July 2011 are the Applicant's costs in the cause.

• Catchwords: COSTS - application for maximum costs order limiting costs recoverable by either party - whether revocation of the setting aside of a common under the Commons Management Act 1989 valid - factors to consider in making maximum costs order - whether litigation public interest - maximum costs order made
• Legislation Cited: Associations Incorporation Act 2009; Civil Procedure Act 2005 s 60, s 98; Commons Management Act 1989 s 3(a), s 4, s 8, s 10, s 61A; Commons Regulation Act 1873 (repealed); Commons Regulation Act 1898 (repealed); Crown Lands Act 1989 s 34, s 80, s 81, s 87, s 88, s 91, s 138; Mining Act 1992 s 63, Sch 1; Commons Management Regulation 2006 cl 5; Land and Environment Court Rules 2007 Pt 4 r 4.2; Uniform Civil Procedure Rules 2005 Pt 42 r 42.4
• Cases Cited: Alliance to Save Hinchinbrook Inc v Cook [2005] QSC 355; Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; (2009) 170 LGERA 1; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; (2009) 170 LGERA 22; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280; Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864; Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424; Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365; McGinn v Ashfield Council [2011] NSWLEC 105; Nettheim v Minister for Planning and Local Government (No 2) (unreported, NSWLEC, Cripps J, 28 September 1998); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; Oshlack v Richmond River Shire Council (1994) 82 LGERA 236; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; R (Corner House Research) v Sec. of State for Trade and Industry [2005] 4 All ER 1; Re Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268
• Category: Costs
• Parties: Deidre Olofsson (Applicant); Minister for Primary Industries (First Respondent); White Mining (NSW) Pty Limited (Second Respondent); Ashton Coal Operations Pty Limited (Third Respondent); Minister for Resources and Energy (Fourth Respondent)
• Representation: Ms R Graycar (Applicant); Mr H Sorensen (First and Fourth Respondents); Mr T Howard (Second and Third Respondents); Environmental Defender's Office (Applicant); Crown Solicitor's Office (First and Fourth Respondents); McCullough Robertson Lawyers (Second and Third Respondents)
• File Number(s): 40637 of 2011, 80279 of 2011

Judgment

 

1 This judgment concerns a Notice of Motion filed on 18 July 2011 by the Applicant seeking a maximum (protective) costs order limiting any award of costs against the Applicant to $10,000. This was amended in Court to provide for a multi-directional order capping liability for all parties' costs to $10,000 except for the Applicant's liability for costs in relation to all Respondents to total no more than $10,000. These Class 4 and 8 proceedings, which have identical pleadings and travel together, seek declarations that the revocation of the setting aside of the Camberwell Common (the Common) in April 2010 and the reservation of that and Lot 1 in DP 1114623 (the Alternative Common) as Crown land is void and of no effect. Another declaration sought relates to Licence 465379 over the Common to the effect that this is void and of no effect. In relation to Mining Lease Application 351 (MLA 351) over part of the Common an order for service of notice on the Camberwell Common Trust (the Trust) and a declaration that the Trust is a "landholder" are sought.

 

2 The proceedings were commenced by summons filed 1 April 2011 in the name of Camberwell Common Inc (CCI) on behalf of the Trust. CCI was incorporated under the Associations Incorporation Act 2009 in September 2010, after the setting aside of the Common was revoked in April 2010 as a consequence of which the Trust was automatically dissolved and ceased to have an estate in fee simple in the Common. I was informed that the standing of the incorporated association was challenged in a Notice of Motion filed 12 May 2011 by the Second and Third Respondents that did not ultimately proceed to hearing. Instead, after discussion amongst the parties, an order providing for the substitution of a new party, ultimately the Applicant, was made by the Court with the consent of all parties on 28 June 2011. By Amended Summons filed 20 July 2011 the Applicant was substituted as the applicant because she was an office bearer of the Trust with a special interest which satisfied common law standing principles in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 , a matter accepted by the Respondents.

 

3 The Points of Claim (POC) filed 2 August 2011 identify that the Applicant is a resident of Camberwell village and was secretary of the Trust in 1998 until the purported revocation of the setting aside of the Common in April 2010. She has been on the commoners' roll since 1998, corrected in her oral evidence as being from 1990. The First Respondent is the Minister administering the Crown Lands Act 1989 (the CL Act) and the Commons Management Act 1989 (the CM Act). The Second Respondent is one of the applicants under MLA 351. The Third Respondent is proponent of Project No 08 0182 which covers Lot 7004 in DP 93630 (part of the Common). The Fourth Respondent is the Minister administering the Mining Act 1992.

 

4 The history of the Common is identified in the POC at par 8 - 11. Briefly, an area of 200 acres was established as a temporary common in 1876 by notice in the New South Wales (NSW) Government Gazette (reserve 170176). By gazette notice published in June 1993 the corporate name of Camberwell Common Trust was assigned in respect of the Trust for the temporary common for the purposes of s 4 of the CM Act. On 26 February 2003 the Fourth Respondent granted a mining lease to the Second Respondent over land that included part of the then Common in relation to the Ashton Coal Project which is an open cut coal mine directly to the north of Camberwell village. On 4 August 2003 the Second Respondent, the Trust, Hunter Rural Lands Protection Board and the First Respondent entered into a compensation agreement in respect of the Ashton Coal Project in which the parties agreed inter alia to consent to mining on part of the then Common as well as on two parcels of Crown land in exchange for the Alternative Common and another parcel of land being gifted to the Crown. On 11 March 2009 project application 08 0182 was lodged with the Department of Planning for assessment in respect of a proposed construction of a further open cut coal mine directly south of Camberwell village known as South East Open Cut Project. On 17 December 2009, the Exploration Licence 5860 (EL 5860) issued by the Fourth Respondent to the Second Respondent on 22 May 2001 covering part of the Common (Lot 7004 in DP 93630) was renewed for another term.

 

5 As at April 2010 the Common consisted of Lot 7004 in DP 93630 and Lot 7300 in DP 1121685. On 16 April 2010 the First Respondent published a notice in the gazette purportedly reserving both the Common and Alternative Common for the purpose of rural services under s 87 of the CL Act and revoking the setting aside of the Common. On 16 April 2010, the First Respondent issued Licence 465379 to the Third Respondent under s 34 of the CL Act in relation to the Common for access, grazing and site inspection. On 30 April 2010 an erratum notice regarding the revocation of the setting aside of the Common on 16 April 2010 was issued. On 28 May 2010 MLA 351 was lodged for the South East Open Cut Project over Lot 7004 in DP 93630.

 

 

Legislation relating to commons/Crown land

6 The CM Act replaced the Commons Regulation Act 1898 (repealed) (the former Act) which in turn replaced the Commons Regulation Act 1873 (repealed). The CM Act defines common in s 3(a) as:

(a) a parcel of land which, on or before 1 February 1909, had, by any instrument made by the Governor, been set aside as a common for the use of the inhabitants of any specified locality or the cultivators or farmers of any locality in which the parcel of land is situated ...

 

7 Section 4 provides that:

...

(3) A body corporate constituted in respect of a common by section 4 of the former Act and in existence immediately before the commencement of this section continues in existence under this Act and is established as a trust in respect of the common for the purposes of this Act.

 

(4) The Minister may, by notice published in the Gazette, alter the corporate name of a trust.

 

(5) A trust established in respect of a common has the functions conferred or imposed on it by or under this or any other Act.

 

(6) The affairs of a trust shall be managed:

(a) by a trust board, or

(b) by a local authority appointed under section 7, or

(c) where an administrator is appointed under section 5 or 48-by the administrator.

 

8 Under s 8 a trust is responsible for the care, control and management of the common for which it is established and it holds the common on trust for the commoners. A commoner is defined in s 3 as someone whose name is entered on the commoners' roll kept for a common. There are provisions for the election of office bearers to a trust and for the keeping of the commoners' roll and the payment of commoners' fees. Under cl 5 of the Commons Management Regulation 2006 a person living in the land district where the common is located and owning less than 20 ha of land is qualified to enrol as a commoner. Under s 61A of the CM Act a common can be revoked by the Minister by notice published in the government gazette.

 

9 The CL Act provides for the management of Crown land in NSW. Under s 87 the relevant Minister may reserve any Crown land for future public requirements or other public purpose. Section 34 identifies the powers of the Minister in relation to Crown land. These powers include the licensing and leasing of Crown land. Section 91 provides that land shall not be reserved unless the Minister is satisfied that the land has been assessed subject to two exceptions.

 

Points of claim

10 There are a number of legal grounds identified in the POC. Ground 1 alleges non-compliance with s 61A of the CM Act. Ground 2 alleges that the decision to revoke the setting aside of the Common was made for an unauthorised purpose. Ground 3 alleges the taking into account of an irrelevant consideration in that in making the decision in relation to the purported revocation of the setting aside of the land for the Commons, the Minister or his delegate took into account an irrelevant matter being the tension between the Trust and the Third Respondent relating to access to Lot 7004 in DP 93630 for the purposes of carrying out flora and fauna studies in connection with the proposed South East Open Cut Project. Ground 4 alleges that no reservation can be made under s 87 of the CL Act without a valid revocation of the setting aside of land for the Common. Ground 5 alleges that the First Respondent failed to comply with the provisions of s 91 of the CL Act and as a result the purported reservation of the Common and the Alternative Common are invalid and of no effect. Ground 6 alleges the decision to reserve the Common and Alternative Common as Crown land is for an unauthorised purpose. Ground 7 alleges that the Minister's delegate took into account an irrelevant consideration when the Common and the Alternative Common were reserved as Crown land. Ground 8 alleges that as the Trust was not served as a landholder in relation to MLA 351 the grant of that mining lease by the Fourth Respondent under s 63 of the Mining Act did not comply with the Mining Act.

 

 

Maximum costs provision

11 Pt 42 r 42.4 of the Uniform Civil Procedure Rules 2005 (the UCPR) provides:

(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.

 

(2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party:

(a) has failed to comply with an order or with any of these rules, or

(b) has sought leave to amend its pleadings or particulars, or

(c) has sought an extension of time for complying with an order or with any of these rules, or

(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap:

(i) progress of the proceedings to trial or hearing, or

(ii) trial or hearing of the proceedings.

(3) An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap:

(a) progress of the proceedings to trial or hearing, or

(b) trial or hearing of the proceedings.

(4) If, in the court's opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).

 

Evidence

Applicant

12 An affidavit of Mrs Olofsson affirmed 18 July 2011 identifies that she has been employed as a tradesman at Macquarie Generation in Muswellbrook since 1986 and is currently employed as an electrician and Acting Electrical Maintenance Team Leader.

 

13 The Common was set aside in 1876. It is one of 200 commons established in NSW on behalf of the community for the purpose of providing a common area for grazing, watering of stock and the collection of firewood, all of which are managed by a commons trust. As at April 2010, the Common was made up of Lot 7004 in DP 93630 and Lot 7300 in DP 112685. An Alternative Common was also provided for at Lot 1 in DP 1114623. Mrs Olofsson relies on her affidavit filed on 12 May 2011 and Ms Illiadis' affidavit filed on 20 May 2011 which attach documents relating to the establishment of the Common. It was purportedly revoked in April 2010 and consequently, the Trust, which held the Common as trustee for the commoners, was purportedly dissolved. The Trust was a body corporate established under the CM Act for the care, management and control of the Common. The members of the Trust board acted in the interests of the Common on a voluntary basis. CCI commenced these proceedings in April 2011. The Respondents sought to have the proceedings dismissed on the ground that CCI did not have standing to bring the proceedings. On 8 July 2011, pursuant to Court orders, a Notice of Motion and supporting affidavit was filed on behalf of CCI seeking an amendment to the summons to substitute Mrs Olofsson as the Applicant in the proceedings.

 

14 Mrs Olofsson has been a resident of Camberwell village for 24 years. In 1998 she was appointed Secretary of the Trust and held that position until the purported revocation of the Common in April 2010. She has been a commoner on the commoners' roll since 1998 (corrected in her oral evidence to 1990). She does not stand to gain financially from these proceedings. Mrs Olofsson's purpose in bringing these proceedings is to uphold and clarify the law relating to the commons and to clarify the circumstances in which they may be lawfully revoked. She wants to protect the Common and the rights and interests of present and future generations of Camberwell commoners. More broadly, she wants to protect and define the rights and interests of the present and future generations of commoners and the public in respect of the administration of the CM Act, the CL Act and the Mining Act.

 

15 Based on Mrs Olofsson's review of the available minutes and records of the Trust dating back to 1934 and her experience as the secretary of the Trust, she states the following is apparent: the commoners have worked for over 130 years to ensure that the Common remain in good condition for use by past and present generations; the Common has been an important asset of the Camberwell community since it was set aside; and since it was set aside villagers have kept their horses and dairy cows on the plot, and their children have used the land for fishing, swimming and riding. The Common is of great community importance both in a historical context and as an ongoing resource for the community to enjoy. In recent years there has been much controversy over, and community concern about, the competing interests of mining companies and the community in respect of the Common. In her experience as secretary of the Trust, there was great public concern about the revocation of the Common in April 2010. When the proceedings commenced in April 2011 there was widespread public support for the case, particularly from those in rural communities in NSW. At that time the First Respondent was also reported acknowledging the community concern about the purported revocation.

 

16 Mrs Olofsson earns a gross income of $99,325 per annum at Macquarie Generation and uses it to support her dependant husband, who ceased employment due to health concerns in 1997, and her dependent child aged 13. She has two other children aged 23 and 25 for whom she is required to provide financial support from time to time. In the event that Mrs Olofsson is unsuccessful in recovering costs in these proceedings, her solicitors the Environmental Defender's Office, have agreed to represent her on a pro bono basis and her counsel has agreed to have her fees capped at $4,000. Her asset and debt amounts are as follows. As at 6 July 2011 Mrs Olofsson had a combined balance of $1510.21 in her six bank accounts. She holds shares with Nib Holdings Limited and Insurance Australia Group Limited and jointly with her husband owns a mortgaged property Camberwell valued at $70,000 as at 1 July 2010 (the mortgaged property). She jointly owns another property in Camberwell valued at $65,000 as at 1 July 2010. Mrs Olofsson also holds a State Super Superannuation Account. A balance of $221,949.83 was outstanding as at 17 March 2011 on her Commonwealth Bank Economiser Home Loan.

 

17 Mrs Olofsson attests that due to her family and financial responsibilities, her limited income and financial resources, and the fact that she does not stand to gain financially from the proceedings, she would only be able to proceed if the Court limits the costs payable by her in the event of an adverse costs order to $10,000, and requests the Court to so order.

 

18 An affidavit of Mrs Olofsson filed in Court on 8 August 2011 annexes copies of records of the commoners' roll for the years 1990, 1991/1992, 1993, 1994, 1995 and the payment of fees for the years 1999 to 2010. In 2008/2009 fees were paid by eight people including Mr and Mrs Olofsson. For 2009/2010 T & D Olofsson, the Applicant's husband and herself, are the only identified payees of fees. Mrs Olofsson was cross-examined about who paid Common fees in 2008/2009. Six of eight people who paid Common fees were the Applicant and her family members including her parents, sister and brother-in-law. Documents produced on subpoena to the Commonwealth Bank shown to her and tendered were used to challenge her evidence of the valuation of two properties owned jointly with her husband referred to at par 19 (g) and (h) of her affidavit filed 18 July 2011. The mortgaged property is valued at $70,000 and the other at $65,000 based on the Notices of Valuation received from the Valuer-General which is exhibited to the affidavit.

 

Second and Third Respondents

19 An affidavit of Mr Matters, legal costs consultant, filed 29 July 2011 provides his opinion that the costs likely to be recovered by the Second and Third Respondents are $146,603.80. A second affidavit filed 4 August 2011 amends one aspect of the first affidavit. This evidence is not in dispute.

 

20 Mr Boyer survey draftsman swore an affidavit dated 4 August 2011 annexing a plan showing the relevant land district in which the Camberwell Common was located and the status of land held within that district including Crown land, freehold land and dwellings, inter alia.

 

21 An affidavit of Ms Pearce, real estate agent, filed 2 August 2011 was read which attaches her report advising of her opinion of the market value of the two properties owned by Mr and Mrs Olofsson. She considers that the range is $300,000 to $320,000 for one and $110,000 to $130,000 for the mortgaged property.

 

22 According to documents from the Commonwealth Bank prepared in the course of a loan application dated 27 October 2008, subpoenaed and tendered by the Second and Third Respondents (exhibit 1A), the mortgaged property was valued at $350,000 by certified valuers on 24 October 2008. There is a figure of $250,000 under the heading "House/land" but without a description. The inference arises that this figure is for her other property.

 

First and Fourth Respondents

23 Ms Illiadis, solicitor for the First and Fourth Respondents, swore an affidavit which annexes all the relevant documents concerning the history of the common and recent dealings with the land the subject of the proceedings under the CM Act and the CL Act. Two affidavits filed by the Applicant and read previously were also relied on being one of Ms Johnson, solicitor, filed 18 April 2011 and of Mrs Olofsson filed 12 May 2011. These annex a copy of the Applicant's letter of objection dated 7 February 2011 purportedly sent on behalf of the Trust to the Director-General of the Department of Industry and Investment in relation to the grant of a mining licence to the Third Respondent.

 

Applicant's submissions

24 Section 98 of the Civil Procedure Act 2005 (the CP Act) gives the Court broad discretion to award costs with more detailed provisions under Pt 42 of the UCPR. The power to order maximum costs is provided under r 42.4. Such an order was made in Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; (2009) 170 LGERA 1 ( BMCS ) , upheld by the Court of Appeal in Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 ( BMCS (CA)) . See also Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; (2009) 170 LGERA 22 . Similar orders have been made in the Supreme Court and the Federal Court. Factors considered by Bennett J in Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 were applied in BMCS and Caroona and the Court of Appeal in BMCS (CA).

 

25 That there can be large costs in public interest matters which can be inhibit such proceedings being commenced was recognised in Caroona .

 

26 In relation to whether a matter is brought in the public interest, factors were identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 ( Caroona No 3 ) , referred to in BMCS (CA) by Basten JA (Macfarlan JA agreeing) and at [20] and in McGinn v Ashfield Council [2011] NSWLEC 105 per Biscoe J at [18] - [19]. This is a public interest case. Whether litigation is public interest has been considered in a number of cases concerning the application of Pt 4 r 4.2(1) of the Land and Environment Court Rules 2007 (the Court Rules) and these cases should be considered as well as those where a maximum costs order has been made. The five factors referred to by Basten JA in BMCS and in Caroona No 3 as relevant to the characterisation of litigation as public interest are as follows: firstly, the public interest served by the litigation; secondly, whether that interest is confined to a relatively small number of members from the group or association or concern with their own private amenity or whether the interest is wider; thirdly, whether the applicant sought to enforce public law obligations; fourthly whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and finally, whether the applicant has no pecuniary interest in the outcome of the proceedings.

 

27 These were referred to in McGinn . Matters that include "something more" include that the litigation raises one or more novel issues of general importance, has contributed to the proper understanding and development of the law (this case will so contribute), the significance of the environment sought to be protected by the proceedings, whether a significant section of the public will be affected and that there is no financial gain in bringing the proceedings. This case raises issues of law that have importance beyond the subject matter of these proceedings.

 

28 The proceedings are being brought to protect the Common, to protect the rights and interests of present and future generations of Camberwell commoners, and more broadly to protect and define the rights and interests of present and future generations of commoners and the public in respect of the administration of the CM Act, the CL Act and the Mining Act; affidavit of Mrs Olofsson of 18 July 2011 at par 6.

 

29 The proceedings challenge the validity of the purported revocation of the setting aside of a Common (Lot 7004 in DP 93630 and Lot 7300 in DP 1121685) and the validity of the purported reservation of those lots and the Alternative Common (Lot 1 in DP 1114623) (par 5 and par 4 respectively of the Amended Summons). Determining these issues will require interpretation of provisions which permit something to be done "by notice published in the Gazette" (s 61A of the CM Act) or "by notification in the Gazette" (s 87 of the CL Act). Determining what constitutes notice or notification in the Gazette, and when such notice or notification is taken to be given, is of importance beyond these two provisions.

 

30 For example, under the CL Act, a number of powers are exercised by notification in the Gazette, including the powers to dedicate Crown land for a public purpose (s 80 and s 81), revoke such dedications (s 84), add to or revoke reserves (s 88) and declare certain land to be Crown land (s 138). This issue of statutory interpretation affects how Crown land generally may be dealt with and is of importance to the public at large. The protection of the Common is of considerable public importance and the action by the Applicant has the support of the wider community. In particular, the common has existed for over 130 years at Camberwell and has been a valuable community asset; affidavit of Mrs Olofsson filed 18 July 2011 at par 9. Conflict between the Common and mining is of general community concern; affidavit of Mrs Olofsson at par 11. The Applicant has no pecuniary interest in the outcome of the proceedings, affidavit of Mrs Olofsson at par 6.

 

31 The purported revocation of the Common was considered sufficiently significant to be the subject of questions in the NSW Parliament. See Hansard, NSW Legislative Council, 11 April 2010 at p 22288.

 

32 Further regional Crown reserves are a valuable part of NSW heritage and are a finite resource to be managed responsibly for the environmental, social and economic needs of the community. There are about 200 commons throughout NSW and have considerable importance for the communities involved.

 

33 The proceedings are the first of their kind: there has never previously been litigation arising from the CM Act and in particular the circumstances in which the setting aside of land as a common may be revoked remains untested. Accordingly, these proceedings will clarify a previously untested power.

 

34 In addition, if the Applicant is successful in having the purported revocation declared void and of no effect, the Court will also be required to consider the proper administration of the notice provision under cl 21, Div 4, Pt 2 of Sch 1 to the Mining Act. This is also a novel issue of law, which has not been dealt with by the Court.

 

35 There are no countervailing circumstances which exist to suggest a departure from the usual order that costs follow the event. The Applicant acts only for the Commons, is seeking to clarify the circumstances in which the powers of the Minister under the CM Act may be exercised, and more broadly, to clarify the circumstances in which a power is exercised by notice in the government gazette. The Applicant is not financially supported by persons or bodies who would benefit financially from, or who would have their legal or financial interests affected by, the outcome of the litigation.

 

36 The order is sought at a very early stage of the proceedings, enabling the other parties to take into account any limitation on the costs payable to the other parties in the event an order is made.

 

37 The claim is manifestly arguable and similarly, manifestly not frivolous or vexatious. The proceedings are not factually complex. They seek declaratory orders concerning the Minister's purported revocation of the Common, and the grant of Licence 465379 to the Third Respondent under s 34 of the CL Act. There are unlikely to be any disputes as to the facts in the proceedings and evidence is likely to be confined to the papers, which will most likely be able to be provided by way of joint tender bundle.

 

38 The Applicant does not stand to gain financially from these proceedings. The Applicant has limited financial resources, as detailed at par 16 - 21 of the Applicant's affidavit filed 18 July 2011, such that the Applicant would face considerable difficulty in meeting an adverse costs order in the event that she is unsuccessful in the proceedings. Fear of an adverse costs order should not deter the Applicant from properly putting forward her claims, particularly in proceedings that are brought in the public interest.

 

39 The Applicant has set out her financial means at par 19 of her affidavit filed 18 July 2011. She holds a number of bank accounts with small amounts of money in them. While she has a regular income, she has a large mortgage and supports her husband and one of her children. An order for costs will cause significant financial hardship to the Applicant, and is likely to mean the loss of her only assets.

 

40 By contrast, the First and Fourth Respondents are Ministers of the Crown and the Second and Third Respondents are mining companies. While they will not be able to recover their full costs if the order is made and the Applicant is unsuccessful, they will not suffer undue financial hardship.

 

 

 

 

Second and Third Respondents' submissions

41 Principles are identified in BMCS at first instance and on appeal in BMCS (CA) and in Caroona and Caroona No 3 . For the purposes of this application it is accepted that the Court may derive assistance from the facts asserted by the Applicant in the POC par 1 - 27. Points of defence have not yet been filed. The only qualification to that is that the Second and Third Respondents do not accept that the Applicant has brought the action in the public interest.

 

42 In relation to the administration of the Common the following should be noted. Under s 3 of the CM Act a commoner is a person whose name is entered on the commoners' roll in respect of the common. Under s 10 the Trust established to manage the common is required to keep the commoners' roll for the common for which the trust is established. The identities of who is on the roll are important.

 

43 Three reasons why the Court should not make a maximum costs order are that these proceedings are not properly characterised as public interest litigation or alternatively there is not something more. While there is a bare public interest on one view there are countervailing considerations concerning the character of the proceedings which would cause the Court to refuse the application. The proceedings concern the private interests of the Applicant and of a small group of other people who are the members of the Applicant's extended family. The Applicant is not utilising an open standing provision but as a special interest holder has standing at common law to bring these proceedings. The reasoning that maximum costs orders are necessary to support open standing provisions cannot apply (Basten JA, Macfarlan JA in BMCS (CA)).

 

44 Secondly, the Applicant has not established that the maximum costs order she seeks is reasonably necessary in order for the proceedings to continue having regard to the financial resources that are, or reasonably might be, available to her. It is not reasonable for the Applicant to insist that she will not continue with the proceedings unless the order sought is made given her considerable income and assets jointly owned with her husband of two properties, one unencumbered. The likely market value of her two properties in light of the Commonwealth Bank loan application documents (exhibit A) and the evidence of Ms Pearce, real estate agent, is in the vicinity of $500,000.

 

45 Thirdly, there is a disproportionality between the costs which the Second and Third Respondents would reasonably be expected to recover from the Applicant if successful in bringing the proceedings, and the sum sought to be fixed by the Applicant as the ceiling for her costs liability. This is relevant in light of s 60 of the CP Act. The evidence of Mr Matters establishes that there is disproportionality in a relevant sense so that the order would offend the principle in s 60 of the CP Act. While not dispositive this is a relevant and important factor to weigh up against the making of a maximum costs order.

 

46 A bare public interest will not dictate the exercise of the discretion conferred by the Court Rules Pt 4 r 4.2 (1) and the same applies to UCPR Pt 42 r 42.4. The Court must consider other factors such as whether there is something more.

 

47 Whether one looks at this particular case through the lens of "public interest " , or through the lens of whether there is "something more" in the requisite sense, or through the lens of the "countervailing considerations" these proceedings are not sufficiently imbued with a public interest character and are too much infused with the character of private or sectarian interest to warrant the making of a maximum costs order. In particular t he Applicant has a special private interest sufficient to confer standing at common law and there are no open standing provisions in play. If the Applicant has, strictly speaking, no financial interest in the outcome of the litigation, as she claims, (a proposition which the Second and Third Respondents submit is dubious on a proper scrutiny of the rights she is seeking to protect or re-instate through these proceedings), she nevertheless has a significant legal interest at stake and a vested (proprietary) interest of sorts as she would assert. The proceedings are fundamentally of a private character and will not affect any significant section of the public.

 

48 The litigation does not raise any novel issues of general importance. It involves a discrete point of statutory interpretation without broad ramifications. The litigation will not contribute in any material way to the proper understanding, development or administration of the law. The claim has a narrow factual compass and the facts are esoteric. Far from being a test case, this case will fall to be determined by a conventional application of administrative law principles and orthodox statutory construction. The litigation has not been brought to protect the environment. That is evident when one identifies the relief sought.

 

First and Fourth Respondents' submissions

49 Whether the matter is a case of public interest litigation is relevant to consider under the Court Rules Pt 4 r 4.2 in determining whether costs ought follow the event once proceedings have been completed. That a matter has been brought in the public interest is not dispositive of this application either. In determining whether a maximum costs order should be made, the identification of the likely final costs order to be made is important: BMCS (CA) at [198] - [202] per Basten JA, Macfarlan JA agreeing. The cases have considered five matters as relevant to whether proceedings have been brought in the public interest (identified above at par 26 and I refer to these in my finding below at par 57 below).

 

50 The Applicant was the founder and secretary of CCI and the members of the Trust Executive Committee were also members of the CCI. If the revocation of the setting aside of the Common is void and of no effect, then the Trust is not dissolved and the commoners' rights continue on, and the decisions following on the revocation are also void and of no effect. That is, success for the Applicant in the proceedings benefits the commoners named on the commoners' roll. The Commons is the commoners' private amenity. It is open to conclude that upholding the public interest and the rule of law is not the prime motivation of the litigation.

 

51 The Applicant gains rights as a commoner which provides her with a personal use of the Common for running cattle, which right is exclusive to anyone not a commoner. This is a personal and private benefit to the Applicant.

 

52 There is no evidence that other commoners have been asked to contribute or could contribute to the litigation. The future of the litigation from the point of view of the Applicant and the Respondents should be considered separately with the consequences balanced, BMCS (CA) at [204].

 

53 The proceedings are brought in relation to the interests of commoners. The proceedings were commenced in April 2011, almost 12 months after the revocation of the setting aside of the Common. There is an expectation that some costs should be recoverable. There is a significant private element to the claim suggesting the First and Fourth Respondents should be entitled to recover costs. The matter could have been resolved quickly with judicial review proceedings of the First Respondent's revocation of the setting aside of the Common. Success on the review would automatically resolve all other issues raised by the summons. There has been lack of efficiency in the manner in which the proceedings have been commenced in relation to the Mining Act issues in addition to the decision to revoke the setting aside of the Common.

 

Consideration

54 The wide costs powers of a court are identified in s 98 of the CP Act. Section 60 of the CP Act identifies that matters should be managed so that costs are proportionate to the nature of a case. Part 42 r 42.4 of the UCPR rules provides for the making of a maximum costs order by a court of its own motion or by the application of a party. The decision to make a maximum costs order is discretionary.

 

55 As referred to in the First and Fourth Respondent's submissions, Basten JA in BMCS (CA) (Macfarlan JA concurring) in the Court of Appeal noted at [186] that where "a broad discretionary power is conferred on a court, it is important that the full range of permissible considerations is identified and that limitations" not reflecting the language of the rule not be imposed. In Caroona at [31] Preston J stated that the factors relevant to the exercise of the discretion to make a maximum costs order will vary depending on the circumstances of the case. There has been one maximum costs order made in this Court in BMCS , upheld on appeal. Whether to make such an order was considered in Caroona . The considerations which can apply in matters before this Court were agreed by the parties to be those identified in BMCS, BMCS (CA) and Caroona .

 

56 The broad discretionary power in UCPR r 42.4 is undefined and can be made in any case where a judge considers that it is appropriate in the particular circumstances. For example, in Re Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 Palmer J considered such an order should be made to ensure the parties did not run up excessive legal costs, referred to in Caroona at [21] and by Basten JA in BMCS (CA) at [185]. In BMCS at [46] - [55] I considered a number of matters in deciding whether to make a maximum costs order, referring to matters considered in R (Corner House Research) v Sec. of State for Trade and Industry [2005] 4 All ER 1 (UK Court of Appeal) at [74] and Corcoran at [6] as a useful guide. That approach was accepted by the majority of the Court of Appeal with Beazley JA dissenting on one matter being the issue of proportionality of costs. A number of those matters are also relevant to this case.

 

Is this a public interest case?

57 One of the key matters in dispute is the extent to which these are public interest proceedings. As I noted in BMCS, in maximum cost order applications the evaluation of public interest is usually made at an early stage, in this case before the filing of a defence and evidence so that all the features of the case cannot be known. That does not prevent an early assessment of whether the matter is brought in the public interest, a view confirmed (and strengthened) on appeal in BMCS (CA). In BMCS I referred to the factors relevant to whether proceedings were public interest considered by Stein J in Oshlack v Richmond River Shire Council (1994) 82 LGERA 236, which reasoning was upheld by the High Court; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 80 - 81. That decision concerned whether costs ought follow the event. Five matters recognised as relevant to whether proceedings have been brought in the public interest and the nature of that interest were identified in Oshlack (at first instance and in the High Court) and in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 (Lloyd J at [15]) and have been referred to in several cases including by Basten JA in BMCS (CA) (summarised in the Applicant's submissions in par 26 above). Firstly, t he public interest served by the litigation; secondly w hether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area; thirdly whether the applicant sought to enforce public law obligations ; fourthly whether the prime motivation of the litigation is to uphold the public interest and the rule of law ; and fifthly w hether the applicant has no pecuniary interest in the outcome of the proceedings.

 

58 The parties also agreed that authorities which have considered r 4.2 of the Court Rules concerning variation of the usual costs order in public interest proceedings once proceedings are completed can be considered in this context. As identified in the Applicant's submissions (above at par 26) Caroona No 3 in considering the application of the Court Rules r 4.2, identified three steps. Firstly, whether the matter has been brought in the public interest. Secondly, is there more than the mere characterisation of the litigation as having been brought in the public interest. Thirdly are there any countervailing circumstances suggesting that departure from the usual costs rule is not justified. Given that Court Rules r 4.2 considers the question of public interest at the final stage of proceedings, the precise application of these principles may require some modification given that the exercise of discretion whether to make a maximum costs order is not the same, a matter noted by Beazley JA in BMCS (CA) at [122].

 

59 This case concerns the revocation of the setting of the Common and reservation of that land and the Alternative Common as Crown land by the First Respondent as the Minister responsible for the administration of the CM Act and the CL Act. There are possible legal consequences for the grant of a mining lease under the Mining Act by the Fourth Respondent if the Applicant is able to pursue this matter and is successful as the Trust would then be a landholder with certain rights under the Mining Act. The focus of my consideration are the grounds in the POC challenging the administration of the CM Act and the CL Act (grounds 1 - 7).

 

60 There is no disagreement that the issues raised in this case in relation to those statutes have not been judicially considered in NSW before. The Applicant's counsel emphasises that this case raises important issues for the administration of CM Act and the CL Act for the first time as identified in her submissions at par 28 above. The Respondents submit that just because the issues have not arisen previously before a court in NSW does not mean that the proceedings are novel or significant or in the nature of a test case. No party was able to advise the Court whether the revocation of the setting aside of a common has ever occurred or was a rare or common event. Its consideration by a court is a rare event if this is the first such case.

 

61 The Common was declared a temporary common in 1876. The First and Fourth Respondent's counsel stated during the hearing that the description of temporary appears to no longer have any relevance under the CM Act. The Common continued in existence until its revocation of its setting aside by the First Respondent in April 2010. The management of areas designated as commons is provided for under the CM Act, which replaced the former Act. The existence of commons within the land management regime in NSW is long standing. That history is referred to in the Second Reading Speech, Commons Management Bill, Local Government (Commons Management) Amendment Bill, 22 February 1989.

 

62 The relevant gazette notice of 16 April 2010 reserving the land under s 87 of the CL Act for specified purposes and the erratum dated 30 April 2010 were exhibited to the affidavit of Ms Illiadis of the Crown Solicitor's Office. There is at the least an irregularity arising from the decisions of the First Respondent under the CM Act and the CL Act. The gazette notice of 16 April 2010 is the notice of the decision to reserve the land in the Common as Crown land to be used for rural services inter alia. In a note Reserve 170176 (the Common) is described as auto revoked. The erratum in the gazette notice dated 30 April 2010 corrects the earlier reservation of Crown land heading and states that Common 170176 is revoked pursuant to s 61A of the CM Act. These issues are raised in grounds 1 and 4 of the POC. Further, ground 5 argues there was non-compliance with s 91 of the CL Act when the Common (and Alternative Common) was reserved as Crown land. Grounds 2, 3, 6 and 7 raise further legal grounds said to give rise to invalidity of the First Respondent's decision to reserve the land under the CL Act.

 

63 I accept the Applicant's counsel's submission that this case raises an important public interest issue of the proper administration of the CM Act and the CL Act by the Crown represented by the First Respondent. The case is concerned at a broad level with the proper administration of land by the Crown and the Applicant is seeking to enforce public law obligations. Several of the issues raised, particularly the question of "by notice published in the gazette", have wider implications beyond these proceedings (Applicant's submissions at par 29 above).

 

64 The motivation of the Applicant in bringing these proceedings attested to in her affidavit of 18 July 2011 (summarised in par 14 above) is to achieve the protection of commons and the rights of commoners more generally in NSW both now and into the future. She maintained this view under cross-examination by the Second and Third Respondents' counsel. Her affidavit attaches newspaper articles about the revocation of the setting aside of the Commons and identifies that a question was asked in NSW Parliament on the topic. Such material suggests there is community concern about the revocation of the setting aside of the Common. I accept her evidence of her motivation in bringing these proceedings.

 

65 The Applicant also stated in her affidavit filed 18 July 2011 (summarised in par 15 above) that she has gone through the records of the Trust from 1934 and in her opinion the commoners have worked to maintain the Common for over 130 years as an important asset of the Camberwell community used for grazing and recreation purposes. I allowed this material to be read over the objection of the Second and Third Respondents' counsel who submitted that it was not a matter which the Applicant could properly give an opinion about. The Applicant's experience as a long term resident and commoner in the village and her knowledge acquired as secretary of the Trust does enable me to give weight to her opinion, and I do.

 

66 The Second and Third Respondents appeared to accept that there was a bare public interest but argued that because of other factors, principally that the Applicant comes to court to protect her private interest as a commoner to use the common if reinstated, the Court should not exercise its discretion to make the order sought. The reason why the Applicant is in the proceedings is identified in par 2 above. A person with sufficient standing has to stand in the shoes of the Trust because the CM Act and the CL Act do not have broad standing provisions and the Trust was dissolved in April 2010 and ceased to have an estate in fee simple in the Common. Such an interest is identified in Onus v Alcoa as an interest in the subject matter of the proceedings above and beyond the general public. Such an interest is necessary in order for an individual to pursue this action given that the Trust no longer exists as a legal entity. The Applicant's standing is based on her previous role as secretary of the Trust, a position she could hold because she was on the commoners' roll. It has been accepted by the Respondents that she has a special interest meaning an interest greater than a member of the public, to establish her common law standing in this matter. That special interest does not necessarily correspond with a personal or private interest. I do not agree with the Respondents' counsels' description of these proceedings as essentially private in nature because the current commoners concerned are small in number and consist largely of family members of the Applicant. I accept that is the position based on the records of who paid Common fees in 2008/2009 and 2009/2010.

 

67 Precisely how the Applicant's interest as a commoner in the Common if reinstated should be characterised is not clear. The Second and Third Respondents' counsel submitted that it was a kind of proprietary interest, the First and Fourth Respondents' counsel described the interest as one which afforded the Applicant a private amenity. Those descriptions may be partially accurate but the interest of a commoner in a common appears to be unique, reflecting the nature of commons historically. A common operates as an area of land that is a community resource for those within the land district where the common is located and who satisfy the criteria of commoner under the relevant Regulation. The use of a common can be for grazing of stock and recreation and that use is enjoyed by individual commoners on a collective basis. It is not accurate to characterise that interest simply as a narrow personal or private interest. Further, the Applicant will not gain financially from the proceedings if she succeeds.

 

68 As held in Caroona at [27] (citing Nettheim v Minister for Planning and Local Government (No 2) (unreported, NSWLEC, Cripps J, 28 September 1998) at 3 - 5 and Alliance to Save Hinchinbrook Inc v Cook [2005] QSC 355 (Jones J) at [11]) that proceedings also involve personal or private interests does not necessarily alter their public interest nature. The loss of an interest as a commoner under the CM Act does not change the fundamental nature of the proceedings as being public interest in nature. I consider the interest raised is significant and that the five matters identified in par 57 relevant to determining whether the proceedings are public interest and are significant are satisfied. Further, to the extent they can be applied, the three steps in Caroona No 3 (identified in par 58 above) suggest that firstly, the proceedings are public interest, and secondly, public law issues will be addressed which have relevance beyond these proceedings. I will consider countervailing circumstances (if any) in the context of the balancing exercise I must undertake in determining if a maximum costs order ought be made in light of all the relevant circumstances.

 

Whether grounds appear arguable

69 The Respondents have not submitted that the grounds in the POC are manifestly hopeless or unarguable. It is not possible to speculate on likely prospects of success at this stage. I can say the grounds in the POC do not appear to be frivolous or manifestly hopeless. As identified above in par 62 there appears to be irregularity on the face of the gazette notices of 16 April and 30 April 2010 which will be explored if this matter proceeds.

 

Access to justice inhibited by potential for adverse costs orders

70 As recognised in BMCS, at first instance and on appeal, in Corcoran and many other cases in this Court and other jurisdictions, there is potential for adverse costs orders to have a limiting effect on the commencement of proceedings taken in the public interest. This deleterious effect on access to justice principles is an important consideration in this case also. This was considered by me in BMCS at [44], by Basten JA in BMCS (CA) at [191] and in Caroona by Preston J at [21] - [25]. I repeat my own observations and adopt their Honours' considerations of this issue. One important difference in the analysis in those cases was the consideration of open standing provisions as there are none in the CL Act or the CM Act. The importance of open standing provisions in the context of access to justice referred to in BMCS at first instance (at [44]) and on appeal (Basten JA at [193] - [196]) does not arise here. The absence of broad standing provisions does not mean that access to justice considerations do not apply in this case given my conclusions above that it is a public interest matter.

 

Proportionality of costs/no financial hardship caused to Respondents

71 Beazley JA in dissent in BMCS (CA) concluded at [163] that the relevance of proportionality as between the amount of costs ordered under r 42.4 and the reasonable estimated costs of the other party is likely to have more significance than is the case with a protective costs order under the UK legislation. Her Honour was in the minority in finding that I erred in the exercise of my discretion on that issue. I mention her findings nevertheless because the issue of proportionality of costs is a live issue in this case given the limit on costs of $10,000 sought compared to the costs which may be recoverable. The evidence of Mr Matters provides a guide to the level of costs which may be recoverable by the Second and Third Respondents. Proportionality of costs within the litigation is an issue raised by the Second and Third Respondents to the effect that if I make the costs order sought the costs they will potentially incur will greatly exceed the amount recoverable and this is a result contrary to s 60 of the CP Act. Section 60 states that matters must be managed so that they are proportionate to the nature of the case. They accept this matter is not dispositive, as it is not.

 

72 In BMCS (CA) Basten JA considered a similar submission from the appellant Delta Electricity at [205] - [207] concluding at [218] that the lack of proportionality between the costs permitted to be recovered ($20,000) and the likely final bill (estimated at $232,000 and $235,000, BMCS at [87]) did not carry the weight sought to be placed on it by Delta Electricity. Basten JA noted that the Delta Electricity submission assumed that an order would be made in favour of Delta because the applicant would fail, and that assumption failed to give weight to the possible operation Court Rule r 4.2. The same two assumptions apply in this case to the submissions of the Second and Third Respondents and this matter does not warrant the weight placed on it in their submissions.

 

73 It is also relevant that none of the Respondents suggest that they will suffer any financial hardship if a maximum costs order is made limiting the amount of costs they may be able to recover. I infer that the Second and Third Respondents have very significant resources at their disposal, far and away in excess of the assets of the Applicant as disclosed in her affidavit and in her oral evidence. The other Respondents as Ministers of the Crown can also be presumed to be unaffected by any loss of costs which may occur if a maximum costs order is made.

 

Efficiency in conduct of proceedings

74 Another matter which relates to the amount of costs which might be incurred and which the Respondents may not therefore recover is whether the proceedings are being conducted efficiently so that the amount of costs incurred in minimised. I referred to this as a relevant consideration in BMCS at [68]. The matter has been set down for two days of hearing, a reasonable period for a matter of this kind. I was informed the matter could proceed largely in reliance on an agreed tender bundle of documents. There was discussion before me of whether the matter could have been more efficiently run in that POC grounds 1 - 7 relating only to the CM Act and the CL Act could be raised without the Mining Act ground (ground 8). That is an option which could still be sorted out between the parties in relation to the matters to be raised at the hearing. That relief is sought in relation to a mining lease reflects the actions taken by the Fourth Respondent consequential on the actions of the First Respondent which are challenged in grounds 1 - 7. That this issue is included in the POC as clearly a legal issue arising from the revocation of the Common does not suggest inefficiency.

 

75 If there is agreement amongst the parties as to the legal consequence for the mining lease the subject of ground 8 in the event the Applicant succeeds in relation to one or more of the other grounds there may be no need for this issue to be litigated. There is otherwise no evidence of inefficiency in the conduct of the proceedings. No concern arises that unnecessary costs will be incurred if the maximum costs order is made.

 

 

The Applicant is reasonable to seek to limit her costs exposure to $10,000

76 The Second and Third Respondents submit that the Applicant is being unreasonable in telling the Court she will only proceed with the litigation if the maximum costs order limiting her costs exposure to $10,000 is made. The Applicant has filed comprehensive affidavit evidence of her income, assets and liabilities and been cross-examined about the market value of her two properties. She earns a reasonable income and owns two properties with her husband, one unencumbered, with possible market value of over $500,000. In the Sydney property market her property holdings would not be considered particularly valuable. Her savings are modest and well short of $10,000 the limit of the resources she can devote to this litigation given her other responsibilities as sole bread winner for her family.

 

77 The Second and Third Respondents' counsel submitted that the Applicant should have sought to obtain contributions from other former commoners or to borrow funds for the litigation rather than seek to obtain an indulgence from the Court in seeking a maximum costs order. In relation to the submission that the Applicant should have made efforts to obtain additional funding for her case, it is not self-evident that it is unreasonable for this individual applicant not to have attempted to borrow money to fund this litigation. I am not sure who would fund such litigation given that, as her counsel submitted, it is unclear whether a commercial provider of litigation funding would be interested in funding a case where no financial outcome is sought. Such a submission is divorced from the reality of what it is reasonable to expect of an individual bringing judicial review proceedings which will result in no financial reward to her.

 

78 Nor is it self evident that the Applicant should have sought contributions from other former commoners in order to demonstrate her reasonableness in seeking the limited maximum costs order given the circumstances in which she became substituted as the Applicant. This occurred, I infer, on very short notice following discussion at Court amongst the parties on 28 June 2011. In the consent orders made on that day, which provided for the substitution of a new applicant, provision for the making of an application for a maximum costs order by 15 July 2011 is in prayer 5.

 

79 In light of her income, assets and liabilities and her financial responsibilities to her family, the Applicant is not unreasonable in giving evidence that this litigation will not continue if the maximum costs order limiting costs to $10,000 is not made.

 

Conclusion

80 All of these factors must be weighed up from the point of view of both the Applicant and the Respondents, mindful of what the final costs order might be in the event the Applicant is unsuccessful. The Applicant seeks to pursue a significant matter of public interest, the nature of her interest as a commoner does not diminish that public interest and I accept her evidence that the litigation will not proceed unless the order sought is made as reasonable. If the order is made, the Respondents will potentially, not definitely, incur costs which they may be unable to recover fully if awarded at the end of the proceedings. They will not suffer financial hardship if that circumstance arises. The proceedings are being conducted efficiently. On balance I consider that the maximum costs order sought by the Applicant ought be made on the basis the order operates equally in relation to all parties.

 

Orders

81 The Court makes the following orders:

1. The maximum costs payable in these proceedings by the Applicant to the First and Fourth Respondents, and by the First and Fourth Respondents to the Applicant, is the sum of $5,000.

2. The maximum costs payable in these proceedings by the Applicant to the Second and Third Respondents, and by the Second and Third Respondents to the Applicant, is the sum of $5,000.

3. The Applicant's costs of the Notice of Motion filed 18 July 2011 are the Applicant's costs in the cause.

Amendments

12 November 2015 - Typographical error in last sentence of par [24] - deletion of "to" after the word Factors and deletion of "including (written submissions at par 14)" after [2008] FCA 864.

Decision last updated: 12 November 2015