Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 3) [2013] NSWLEC 152

Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 3) [2013] NSWLEC 152

The litigation was in the public interest for the purposes of r 4.2(1) of the Land and Environment Court Rules 2007, satisfying the Caroona test, including raising novel issues of general legal importance regarding jurisdiction and statutory construction, and no countervailing considerations preclude a 'no order as to costs' decision. Therefore, each party should bear its own costs of the proceedings. The Department, having unsuccessfully opposed the costs application, should pay the applicant's costs of that application.

Parties
Applicant: Fullerton Cove Residents Action Group Incorporated; First Respondent: Dart Energy Ltd; Second Respondent: New South Wales Department of Trade and Investment, Regional Infrastructure and Services
Jurisdiction
Australia
Judgment Date
12 September 2013
Procedural Posture
Judicial Review—costs Application / Post Judgment Costs Decision
Outcome
Each party to bear its own costs of the substantive proceedings. The New South Wales Department of Trade and Investment, Regional Infrastructure and Services to pay Fullerton Cove Residents Action Group Incorporated's costs of the costs application.
Legal Topics
Public Interest Litigation, Departure From Usual Costs Rule, Environmental Judicial Review, Award of Costs in Class 4 Proceedings
Costs Law Environmental Law Civil Procedure Public Interest Litigation Departure From Usual Costs Rule Environmental Judicial Review Award of Costs in Class 4 Proceedings

Case Brief

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Parties

Fullerton Cove Residents Action Group Incorporated

Applicant

Dart Energy Ltd

First Respondent

New South Wales Department of Trade and Investment, Regional Infrastructure and Services

Second Respondent

Procedural Posture

Judicial Review—costs Application / Post Judgment Costs Decision

Legal Issues

  1. 1 Whether a departure from the usual rule that costs follow the event should be made in unsuccessful judicial review proceedings
  2. 2 Whether the proceedings were properly characterised as being brought in the public interest under r 4.2(1) of the Land and Environment Court Rules 2007
  3. 3 Whether any countervailing considerations prevent a 'no order as to costs' decision

Ratio Decidendi

The litigation was in the public interest for the purposes of r 4.2(1) of the Land and Environment Court Rules 2007, satisfying the Caroona test, including raising novel issues of general legal importance regarding jurisdiction and statutory construction, and no countervailing considerations preclude a 'no order as to costs' decision. Therefore, each party should bear its own costs of the proceedings. The Department, having unsuccessfully opposed the costs application, should pay the applicant's costs of that application.

Court Disposition

Each party to bear its own costs of the substantive proceedings. The New South Wales Department of Trade and Investment, Regional Infrastructure and Services to pay Fullerton Cove Residents Action Group Incorporated's costs of the costs application.

Orders

  • With the exception noted in order (2), each party is to bear its own costs of the proceedings.
  • The New South Wales Department of Trade and Investment, Regional Infrastructure and Services is to pay Fullerton Cove Residents Action Group Incorporated's costs of, and incidental to, the costs hearing before the Court on 10 September 2013.