Minister for Planning v Walker (No 2)

HODGSON JA : On 24 September 2008, the Court of Appeal gave its substantive decision on this appeal: [2008] NSWCA 224. The Court has now received submissions concerning costs from the Minister and from Ms Walker.

The submissions relate both to costs at first instance and to the costs of the appeal. At first instance, the primary judge made an order that the respondents at first instance (that is, the Minister, Stockland and Villages) pay 70 per cent of Ms Walker’s costs from and including 31 August 2007, and made no order as to costs prior to 31 August 2007.

The appeal to this Court was brought by the Minister. Stockland and Villages were respondents, and entered submitting appearances.

The Minister submits that, as the successful party, it should be awarded its costs both at first instance and on appeal.

It was submitted for the Minister that a finding that the proceedings may be characterised as public interest litigation would not of itself be enough to constitute special circumstances warranting departure from the usual rule that costs follow the event: see Oshlack v Richmond River Council (1998) 193 CLR 72.

On the question whether the litigation could in any event properly be characterised as having been brought in the public interest, the Minister referred to five considerations identified by Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365, namely: (a) The public interest served by the litigation; (b) Whether that interest is confined to a relatively small number of people in the immediate vicinity of a development, or whether the interest is wide; (c) Whether the applicant sought to enforce public law obligations; (d) Whether the prime motivation of the litigation is to uphold the public interest and the rule of law; (e) Whether the applicant has no pecuniary interest in the outcome of the proceedings.

The Minister accepted that considerations (c) and (e) were present in this case, but not the others.

In my opinion, there is clearly a public interest in the principles of ecologically sustainable development (ESD) and in climate change flood risk in relation to properties near the coast. In my opinion, it is clear that this interest is not confined to a small number of people in the immediate vicinity of the development in this case. I would infer that the prime motivation of this litigation was to uphold the rule of law in relation to that matter of public interest. Accordingly, in my opinion, this was plainly public interest litigation.

I accept the Minister’s submission that more is required to displace the ordinary rule as to costs. In this case, in my opinion, there are the following additional factors: (1) The proceedings did raise a novel point of law, namely the extent to which the objects of the EPA Act , set out in s 5 of that Act, could constitute mandatory requirements in respect of decisions of the Minister. (2) The point was reasonably arguable, and in effect was upheld by the primary judge. (3) According to the primary judge and a majority of the Court of Appeal, Ms Walker did establish that the Minister had not taken into account one of those objects, namely ESD. (4) According to that majority, the Minister’s failure to do so was contrary to good decision-making, albeit not something that invalidated the decision, and ESD was something that should be taken into account when approval of the development was sought.

In all the circumstances, in my opinion, the proper exercise of discretion is to order that each party pay its own costs at first instance and on appeal. Although Stockland and Villages did not appeal against the costs order made against them at first instance, in my opinion that costs order should be set aside in circumstances where Ms Walker’s proceedings have failed against them. Accordingly, they should be included in the proposed order that each party pay its own costs at first instance and on appeal.

CAMPBELL JA: I agree with Hodgson JA.

BELL JA: I agree with Hodgson JA.