Redfern v Water Administration Ministerial Corporation of New South Wales and Department of Infrastructure, Planning and Natural Resources [2007] NSWLEC 426

Redfern v Water Administration Ministerial Corporation of New South Wales and Department of Infrastructure, Planning and Natural Resources [2007] NSWLEC 426

No costs order was fair and reasonable because the proceedings were discontinued without a merits determination, supervening events rendered further prosecution futile, the respondents did not capitulate, the approval ultimately obtained under s 90 of the Water Management Act 2000 was different from the licence sought under s 13A of the Water Act 1912, the respondents' delay was not shown to have caused costs the applicant would not otherwise have incurred, and the respondents' power and discretion arguments were arguable rather than unreasonable.

Jurisdiction
Australia
Judgment Date
03 July 2007
Procedural Posture
Class 3 Proceedings / Application for Costs After Notice of Discontinuance, Except as to Costs
Outcome
No order as to costs was made for either the substantive proceedings or the applicant's costs application.
Legal Topics
['discontinuance of Proceedings' "whether Respondents Should Pay Applicant's Costs" 'fair and Reasonable Costs Order' 'water Supply Works Approval' 'licence Under S 13 a of the Water Act 1912']
['costs' 'water Law' 'land and Environment Court Procedure'] ['discontinuance of Proceedings' "whether Respondents Should Pay Applicant's Costs" 'fair and Reasonable Costs Order' 'water Supply Works Approval' 'licence Under S 13 a of the Water Act 1912']

Case Brief

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Procedural Posture

Class 3 Proceedings / Application for Costs After Notice of Discontinuance, Except as to Costs

Legal Issues

  1. 1 ["Whether, after discontinuance of the Class 3 proceedings without a determination on the merits, the first and/or second respondents should pay the applicant's costs of the proceedings." 'Whether the applicant had in substance achieved the result sought in the proceedings through agreement with neighbours and the grant of an approval under s 90 of the Water Management Act 2000.' "Whether the respondents' conduct before and during the proceedings was so unreasonable as to justify a costs order." 'Whether it was fair and reasonable to order costs under s 69 of the Land and Environment Court Act 1979 as modified by Pt 16 r 4 of the Land and Environment Court Rules.']

Ratio Decidendi

No costs order was fair and reasonable because the proceedings were discontinued without a merits determination, supervening events rendered further prosecution futile, the respondents did not capitulate, the approval ultimately obtained under s 90 of the Water Management Act 2000 was different from the licence sought under s 13A of the Water Act 1912, the respondents' delay was not shown to have caused costs the applicant would not otherwise have incurred, and the respondents' power and discretion arguments were arguable rather than unreasonable.

Court Disposition

No order as to costs was made for either the substantive proceedings or the applicant's costs application.

Orders

  • ['The Court makes no order for costs in relation to the substantive proceedings.' "The Court makes no order for costs in relation to the applicant's application for costs." 'The exhibits can be returned.']