Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [No. 2] [2007] NSWLEC 271

Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [No. 2] [2007] NSWLEC 271

Although the proceedings involved the public interest and the applicant had limited success in establishing a threatened breach of special consent conditions, the validity challenge against the Director-General was unsuccessful, involved conventional administrative law grounds, raised no novel issue about the construction or operation of legislation, and there was no disentitling conduct by the Director-General. The applicant's partial success justified reducing, but not refusing, the Director-General's costs, so the applicant was ordered to pay 50% of the first respondent's costs.

Jurisdiction
Australia
Judgment Date
23 May 2007
Procedural Posture
Class 4 Application; Costs Application / Costs Judgment After Dismissal of Validity Challenge and Limited Finding of Threatened Breach of Consent Conditions
Outcome
First respondent's costs application allowed in part.
Legal Topics
['public Interest Litigation Costs' 'costs Discretion Under S 69 of the Land and Environment Court Act 1979' 'national Parks and Wildlife Act Consent' 'validity of Consent to Destroy Aboriginal Objects' 'compliance With Consent Conditions']
['environmental Law' 'planning Law' 'costs' 'administrative Law' 'aboriginal Cultural Heritage'] ['public Interest Litigation Costs' 'costs Discretion Under S 69 of the Land and Environment Court Act 1979' 'national Parks and Wildlife Act Consent' 'validity of Consent to Destroy Aboriginal Objects' 'compliance With Consent Conditions']

Case Brief

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Procedural Posture

Class 4 Application; Costs Application / Costs Judgment After Dismissal of Validity Challenge and Limited Finding of Threatened Breach of Consent Conditions

Legal Issues

  1. 1 ['Whether the proceedings were public interest litigation warranting departure from the usual order that costs follow the event.' 'Whether additional or special circumstances justified refusing the successful first respondent a costs order.' "Whether the applicant's limited success on threatened breach of consent conditions warranted a proportional costs order."]

Ratio Decidendi

Although the proceedings involved the public interest and the applicant had limited success in establishing a threatened breach of special consent conditions, the validity challenge against the Director-General was unsuccessful, involved conventional administrative law grounds, raised no novel issue about the construction or operation of legislation, and there was no disentitling conduct by the Director-General. The applicant's partial success justified reducing, but not refusing, the Director-General's costs, so the applicant was ordered to pay 50% of the first respondent's costs.

Court Disposition

First respondent's costs application allowed in part.

Orders

  • ["The applicant is to pay 50% of the first respondent's costs as agreed or assessed."]