Oshlack v Rous Water (No 3) [2012] NSWLEC 132

Oshlack v Rous Water (No 3) [2012] NSWLEC 132

Although the proceedings could generally be characterised as public interest litigation and the preliminary questions before Biscoe J raised novel issues of general importance, the final hearing in Oshlack v Rous Water (No 2) turned on particular factual circumstances and did not satisfy the public interest costs exception. The applicant's late abandonment of the s 112 ground was disentitling conduct. Because Biscoe J had ordered costs of the preliminary hearing to be costs in the cause, the proper course was to apportion costs to reflect that approximately 25% of the proceedings related to public interest preliminary questions and to order the applicant to pay 75% of the first and second...

Jurisdiction
Australia
Judgment Date
07 June 2012
Procedural Posture
Costs / Costs Application Following Dismissal of the Applicant's Summons
Outcome
The first and second respondents obtained a costs order for 75% of their costs of the proceedings.
Legal Topics
['public Interest Litigation' 'costs Follow the Event' 'costs in the Cause' 'apportionment of Costs' 'judicial Review of Public Authority Decisions' 'fluoridation of Public Water Supplies']
['civil Procedure' 'costs' 'environmental Law' 'administrative Law'] ['public Interest Litigation' 'costs Follow the Event' 'costs in the Cause' 'apportionment of Costs' 'judicial Review of Public Authority Decisions' 'fluoridation of Public Water Supplies']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs / Costs Application Following Dismissal of the Applicant's Summons

Legal Issues

  1. 1 ['Whether the proceedings were brought in the public interest for the purpose of r 4.2(1) of the Land and Environment Court Rules 2007.' 'Whether the proceedings raised novel issues of general importance or otherwise satisfied the requirement for something more than a public interest claim.' 'Whether the applicant engaged in disentitling conduct by late abandonment of grounds of review, particularly the s 112 Environmental Planning and Assessment Act 1979 ground.' "What effect Biscoe J's order that costs be costs in the cause had on the costs determination." "Whether the first and second respondents' costs should be apportioned."]

Ratio Decidendi

Although the proceedings could generally be characterised as public interest litigation and the preliminary questions before Biscoe J raised novel issues of general importance, the final hearing in Oshlack v Rous Water (No 2) turned on particular factual circumstances and did not satisfy the public interest costs exception. The applicant's late abandonment of the s 112 ground was disentitling conduct. Because Biscoe J had ordered costs of the preliminary hearing to be costs in the cause, the proper course was to apportion costs to reflect that approximately 25% of the proceedings related to public interest preliminary questions and to order the applicant to pay 75% of the first and second...

Court Disposition

The first and second respondents obtained a costs order for 75% of their costs of the proceedings.

Orders

  • ["The applicant is to pay 75% of the first and second respondents' costs of the proceedings."]