Sharples v Minister for Local Government [2008] NSWLEC 67

Sharples v Minister for Local Government [2008] NSWLEC 67

Although the respondents moved promptly, the applicant was impecunious, and he had not complied with directions to plead, the proceedings were arguable, genuine, properly instituted, brought by a person within the jurisdiction, and brought in the public interest as well as in the applicant's own interest. A security order would likely stultify the proceedings and the applicant gave an acceptable health-related explanation for his defaults. Those factors outweighed an unconditional security order, but the risk of continued default justified a conditional order requiring timely points of claim and, only in default, security for costs.

Jurisdiction
Australia
Judgment Date
08 February 2008
Procedural Posture
Judicial Review Proceedings / Interlocutory Notices of Motion for Security for Costs; Ex Tempore Judgment
Outcome
Conditional security for costs order made; proceedings to be stayed only if the applicant defaults on filing and serving points of claim and then fails to provide security.
Legal Topics
['security for Costs' 'open Standing Statutory Provisions' 'impecunious Applicant' 'public Interest Proceedings' 'failure to Comply With Directions to Plead']
['civil Procedure' 'costs' 'local Government' 'land and Environment Court Procedure'] ['security for Costs' 'open Standing Statutory Provisions' 'impecunious Applicant' 'public Interest Proceedings' 'failure to Comply With Directions to Plead']

Case Brief

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Procedural Posture

Judicial Review Proceedings / Interlocutory Notices of Motion for Security for Costs; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Court retained power to make a security for costs order under s 69 of the Land and Environment Court Act 1979 after its repeal where the notices of motion were filed before repeal.' 'Whether security for costs should be ordered against an impecunious, self-represented applicant bringing proceedings under the open standing provisions of s 674 of the Local Government Act 1993.' "Whether the applicant's failure to comply with directions to file and serve points of claim justified a security for costs order." 'Whether the public interest nature of the proceedings weighed against ordering security for costs.']

Ratio Decidendi

Although the respondents moved promptly, the applicant was impecunious, and he had not complied with directions to plead, the proceedings were arguable, genuine, properly instituted, brought by a person within the jurisdiction, and brought in the public interest as well as in the applicant's own interest. A security order would likely stultify the proceedings and the applicant gave an acceptable health-related explanation for his defaults. Those factors outweighed an unconditional security order, but the risk of continued default justified a conditional order requiring timely points of claim and, only in default, security for costs.

Court Disposition

Conditional security for costs order made; proceedings to be stayed only if the applicant defaults on filing and serving points of claim and then fails to provide security.

Orders

  • ['The applicant file and serve points of claim within 21 days.' "In default the proceedings will be stayed unless the applicant provides security within a further 14 days in the sum of $6,000 on account of the first and second respondents' costs and in the sum of $6,000 on account of the third respondent's costs."...