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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 12 April 2002
NEW SOUTH WALES COURT OF APPEAL
CITATION: Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32 revised - 12/04/2002
FILE NUMBER(S):
40514/01
HEARING DATE(S): 30 October 2001
JUDGMENT DATE: 26/02/2002
PARTIES:
Judith Melville (Claimant)
Craig Nowlan & Associates Pty Ltd (First Opponent)
Maclean Shire Council (Second Opponent)
JUDGMENT OF: Stein JA Heydon JA Young CJ in Eq
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): LEC 40011/00
LOWER COURT JUDICIAL OFFICER: Cowdroy J
COUNSEL:
Mr P W Larkin/Ms N Obrart (Claimant)
Mr P R Clay (First Opponent)
SOLICITORS:
Wroth Wall (Claimant)
Verekers (First Opponent)
Pickering Priestley (Second Opponent) - submitting appearance
CATCHWORDS:
Land and Environment Court - Interlocutory orders - Appeal - Security for costs - Plaintiff impecunious - Power of Land and Environment Court to order security for costs - Trial proceedings - Statutory construction - Environmental Planning and Assessment Act 1979 (NSW) s 69(3) - D
LEGISLATION CITED:
Commonwealth of Australia Constitution Act 1900 (Imp)
Companies Act 1862 (UK)
Companies Act 1874 (NSW)
Companies Act 1899 (NSW)
Companies Act 1929 (UK)
Companies Act 1936 (NSW)
Companies Act 1948 (UK)
Companies Act 1961 (NSW)
Companies (Consolidation) Act 1908 (UK)
Companies (New South Wales) Code
Environmental Offences and Penalties Act 1989 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Evidence Act 1995 (NSW)
Federal Court of Australia Act 1976 (Cth)
Joint Stock Companies Amendment Act 1857 (UK)
Judiciary Act 1903 (Cth)
Land and Environment Court Act 1979 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Supreme Court Act 1970 (NSW)
Trade Practices Act 1974 (Cth)
DECISION:
See paragraph 133
JUDGMENT:
CASES CITED
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Adam v R [2001] HCA 57; (2001) 183 ALR 625
Arnold v Queensland (1987) 73 ALR 607
Australian Building Construction Employees' & Builders' Labourers' Federation v Commonwealth Trading Bank [1976] 2 NSWLR 371
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Barton v Minister for Foreign Affairs (1984) 54 ALR 586
Boyce v Paddington Borough Council [1903] 1 Ch 109
Brown v EPA (Unreported, Court of Appeal, 1 April 1993)
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46
Ceil Comfort Insulation Pty Ltd v ARM Equipment Finance Pty Ltd [2001] NSWSC 28
Chang v Comcare Australia [1999] FCA 1677
Cowell v Taylor (1885) 31 Ch D 34
DJE Constructions Pty Ltd v Maddocks (1981) 38 ALR 185
Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310
Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962
Bryan E Fencott Associates Pty Limited v Eretta Pty Limited (1987) 16 FCR 497
Fletcher v Federal Commissioner of Taxation [1992] FCA 388; (1992) 110 ALR 233
John Fairfax & Sons Ltd v Cogjuangco (1987) 8 NSWLR 145 at 151
Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523
James v Australia and New Zealand Banking Group Ltd (No 1) (1985) 9 FCR 422
Knight v F P Special Assets Pty Ltd [1992] HCA 28; (1992) 174 CLR 178
Lucas v Yorke (1983) 50 ALR 228
McHenry v Lewis (1883) 22 Ch D 397
Maritime Services Board v Citizens Airport Environment Association Inc (Unreported, Court of Appeal, 23 December 1992)
Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (1994) 83 LGERA 107
Morris v Hanley [2000] NSWSC 957
Morris v Hanley [2001] NSWCA 374
NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706
Orr v Lusute Pty Limited (1987) 72 ALR 617
Oshlack v Richmond River Council (1994) 82 LGERA 236
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Pearson v Naydler [1977] 1 WLR 899; 3 All ER 531
R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45
Rajski v Computer Manufacturing and Design Pty Ltd [1982] 2 NSWLR 443
Razorback Environment Protection Society Inc v Wollondilly Council [1999] NSWLEC 8
Rowley v NSW Leather and Trading Co Pty Ltd (1980) 46 LGRA 250
Ryde Pool Action Group Inc v Ryde City Council [1999] NSWLEC 96
Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281
Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746
Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383
Sykes v Sykes (1869) LR 4 CP 745
The Victorian Chamber of Manufactuers v The Commonwealth [1943] HCA 19; (1943) 67 CLR 335
Thunderdome Race Timing and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Thune v London Properties Ltd [1990] 1 WLR 562
Town Watch Inc v Grafton City Council (1997) 93 LGERA 401
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Wagner v Mears [1829] EngR 646; (1829) 3 Sim 127; 57 ER 947
Water Conservation and Irrigation Commission (New South Wales) v Browning [1947] HCA 21; (1947) 74 CLR 492
Weston v Beaufils [1993] FCA 331; (1993) 43 FCR 292
Yandil Holdings Pty Limited v Insurance Co of North America (1986) 7 NSWLR 571
Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40514/01
LEC 40011/01
STEIN JA
HEYDON JA
YOUNG CJ in Eq
26 February 2002
PTY LIMITED
Land and Environment Court - Interlocutory orders - Appeal - Security for costs - Plaintiff impecunious - Power of Land and Environment Court to order security for costs - Trial proceedings - Statutory construction - Environmental Planning and Assessment Act 1979 (NSW) s 69(3)
Section 123(1) of the Environmental Planning and Assessment Act 1979 (NSW) provided that:
"Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach."
The claimant was an impecunious natural person who brought proceedings in the Land and Environment Court against the first and second respondents under s 123(1). She claimed that the first respondent's development application did not comply with certain statutory requirements and that the consent of the second defendant (a local council) to the development was therefore invalid. The claimant sought declarations and an injunction as relief. By a Notice of Motion the first respondent sought security for costs against the claimant in interlocutory proceedings. The trial judge made such an order finding power to do so in s 69 Land and Environment Court Act 1979 (NSW). Section 69 relevantly provided:
"(1) In this section, costs includes:
(a) costs of or incidental to proceedings in the Court,
(b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and
(c) in the case of proceedings transferred or remitted to the Court, the costs of or incidental to the whole proceedings, both before and after the transfer or remittal.
(2) Subject to the rules and subject to any other Act:
(a) costs are in the discretion of the Court,
(b) the Court may determine by whom and to what extent costs are to be paid, and
(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.
(3) The Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party.
...
Held: Heydon JA (Young CJ in Eq agreeing, Stein JA dissenting), dismissing the appeal,
(1) Under s 69(3) the Land and Environment Court had a general power to make orders for security for costs. The claimant's contention that the court below had no power at all or no applicable power to make a costs order against the claimant on the grounds that s 69(3) did not abolish the "basic" or "general" rule that an order for security for costs would not be made against an impecunious natural person required the broad words of s 69(3) to be read down. The claimant's construction argument was untenable: [57], [73]-[77], [105]-[110].
Knight v F P Special Assets Pty Ltd [1992] HCA 28; (1992) 174 CLR 178; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 considered.
(2) The natural meaning of the words "any person" in s 129(1) meant that the power conferred on the Land and Environment Court by s 69(3) included power to make orders for security for costs against impecunious natural persons such as the claimant. The words "any person" in s 129(1) should not be construed to mean anything other than their ordinary and natural meaning: [102], [106]-[110], [123]-[124].
The Victorian Chamber of Manufacturers v The Commonwealth [1943] HCA 19; (1943) 67 CLR 335; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591; Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383; Trade Practices Act 1974 (Cth) s 80(1) considered.
(3) Although there were close similarities between s 69(3) and the Federal Court of Australia Act 1976 (Cth) s 56(1), relating to the power of the Federal Court of Australia to make orders for security for costs in trial proceedings, statements of the Federal Court suggesting that the "basic" or "general" rule that an order for security for costs would not be made against impecunious natural person despite the wide language of s 56(1) did not explain how the rule survived that language and were in any case mere dicta: [81]-[93].
Barton v Minister for Foreign Affairs (1985) 54 ALR 586; James v Australia and New Zealand Banking Group Ltd (No 1) (1985) 9 FCR 442; Cameron's Unit Services Pty Ltd v Kevin R Whelpton and Associates (Australia) Pty Ltd (1986) 13 FCR 46; Orr v Lusute (1987) 72 ALR 617; Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962; Weston v Beaufils (199) [1993] FCA 331; 43 FCR 292; Fletcher v Federal Commissioner of Taxation [1992] FCA 388; (1992) 110 ALR 233 distinguished; Thunderdome Race Timing and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 considered.
(4) The High Court's construction of provisions similar to s 69(3) relating to the High Court's ability to order security for costs showed no disposition to do anything other than give the relevant language its natural meaning so as to produce a broad discretion. Although those provisions related to appeals and therefore did not collide with the "basic" or "general" rule applying to trials the approach to construction was directly relevant: [95]-[98], [103]-[104], [106]-[109].
DJE Constructions Pty Ltd v Maddocks (1981) 38 LR 185; Lucas v Yorke (1983) 50 ALR 228 considered.
(5) The argument that the trial judge should not have made an order´ against the claimant because it denied the claimant her right to have her case determined on its merits irrespective of her financial position failed. The claimant had no special interest in the subject matter and s 123(1) allowed anyone to bring an action to remedy the alleged wrong complained of. In this sense the action was merely one which the claimant personally was bringing, not one which was personal to the claimant. To allow an order for security for costs to be made against the complainant therefore did not deprive her of any right: [102], [109], [124]-[127].
(6) The trial judge's conclusion that "[t]here is no reason, in principle, to treat an application for security for costs differently to an application for costs" was in error. By adopting that view the trial judge wrongly considered that the opponent was entitled to security in a regularly instituted, arguable case, unless the applicant could show strong prospects of success and therefore exercised his discretion improperly: [113]-[116].
(7) Because the exercise of discretion did not turn on issues of credibility, it was open to the Court of Appeal to re-exercise the discretion under s 69(3). The discretion was exercised in favour of an order for security.
1. The claimant's application for leave to appeal is granted.
2. The claimant is to file a Notice of Appeal in the form of the draft appearing in the papers within seven days.
3. The appeal is dismissed.
4. The claimant is ordered to pay the opponent's costs of the leave application and of the appeal.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40514/01
LEC 40011/01
STEIN JA
HEYDON JA
YOUNG CJ in Eq
26 February 2002
PTY LIMITED
Judgment
1 STEIN JA:
The context of the application for security for costs before the Land and Environment Court
2 As a starting point, it is important to consider the context of the proceedings brought by the claimant before the Land and Environment Court wherein the opponent sought security for its costs. Open standing provisions were inserted into the Environmental Planning and Assessment Act (the EPA Act) upon its enactment in 1979. Other mechanisms facilitating public participation in the system of environmental decision-making were also included in the statute. One of the objects of the legislation was to enhance public participation in the planning system (s 5).
3 Similar, indeed often identical, open standing provisions have been included in other statutes of New South Wales which directly bear on the operation of environmental law. In 1997, open standing provisions were extended to any breach of the Protection of the Environment Operations Act (the POEO Act) (s 252). This enactment further extended liberalised standing to any person seeking to restrain a threatened or apprehended breach `of any other Act' if the breach is causing or likely to cause harm to the environment (s 253). The same legislation, subject to certain limitations, extended open standing to the institution of criminal proceedings by any person in relation to breaches of the POEO Act, including most air, water, land and noise pollution.
4 Section 123(1) of the EPA Act provides that `any person' may bring proceedings in the Land and Environment Court to remedy or restrain a breach of the Act `whether or not any right of that person has been or may be infringed by or as a consequence of that breach'. Subsection (2) provides:
Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
5 Indeed, the existence of open standing provisions in all `planning and environmental laws' and their extension by the POEO Act to the breach of any law causing or likely to cause harm to the environment, has been a quite deliberate series of steps by the legislature over a period of time. The provisions have lead to the enhancement of public participation and contributed to the opportunity for the incremental development of environmental law in the state.
6 The importance and centrality of the provision in s 123 was emphasised by the High Court in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 see, for example, Gaudron and Gummow JJ at [45] [47] [49].
7 Of s 123 Kirby J explained that (at [113]):
The section is one of a number of like provisions designed to increase the rights of access to the law and the courts of persons having a particular interest in, and commitment to, environmental concerns. Such provisions, enacted in New South Wales by successive parliaments and under successive governments, portray an apparently consistent view that the legal barriers which formerly prevented environmental activists from engaging the jurisdiction of the courts should, in the specified cases and in the Land and Environment Court, be lifted.
8 His Honour emphasised (at 114) that inherent in the `legislative innovation' was the conclusion of the parliament that it is in the public interest that individuals and groups should be able to engage the court's jurisdiction although they have no personal, or financial interest, in the subject matter. He added that the removal of the barrier to standing would be an empty gesture if the public nature of the proceedings could not be taken into account on the issue of costs.
9 Kirby J further stated in Oshlack (at [122]):
Given that statutory context and the clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of Parliament's particular purposes.
10 As President of the Court of Appeal (in Maritime Services Board v Citizens Airport Environment Association Inc. (Unreported, 23 December 1992 at 6) his Honour said that:
... there would be many persons whose access to this Court, provided by Parliament, would be removed or diminished in practical terms by an order that security be given in advance of the hearing of the merits of their appeal. Impecuniosity will not, therefore, usually be sufficient, standing alone, to amount to special circumstances. Otherwise, even more than they already are, the courts would become the facility of the rich and the rule of equal justice under law would be an exceedingly empty boast.
11 His Honour said (at 7) that the widened standing rights in s 123 were reflective of the `high social importance of protecting the environment by the processes of law'.
12 In Brown v EPA (Unreported, Court of Appeal, 1 April 1993) Priestley JA took account of the fact that the provision in the Environmental Offences and Penalties Act 1989 (the precursor to the POEO Act) under which the applicant brought the proceedings `appear[ed], as ... [did] related legislation, to be deliberately aimed at giving access to the Land and Environment Court, ... of a wider than ordinary kind'.
13 My reason for providing the context to the operation of s 123 of the EPA Act is that it was pursuant to this provision that the claimant brought the subject proceedings in the Land and Environment Court. In the proceedings, in the nature of judicial review, the claimant contended that a development consent granted by the Maclean Shire Council was invalid because of the Council's failure to comply with certain provisions of the Maclean Local Environmental Plan. Accordingly, the claimant's Points of Claim argued that the proposed development was in contravention of the EPA Act.
The claimed errors by the primary judge
14 Heydon JA has set forth the relevant facts and it is unnecessary for me to repeat them. Cowdroy J found that the claimant was impecunious. His Honour also accepted that the proceedings had been instituted as public interest litigation pursuant to s 124 of the EPA Act.
15 Section 69(3) of the Land and Environment Court Act 1979 (the LEC Act) provides that that court may order a party instituting proceedings in the court to give security for the payment of costs that may be awarded against that party (see also s 69(4) - (7) inclusive). Part 53 r 2(1) of the Supreme Court Rules (adopted by Part 6 r 1 of the Land and Environment Court Rules) was also referred to by Cowdroy J, but it seems common ground that none of the paragraphs are here applicable.
16 On behalf of the claimant, it was argued before us that either his Honour had no power to order the claimant to give security for costs or, if he did, his Honour erred in the exercise of the discretion. Reliance was placed upon the finding of the claimant's impecuniosity, her regular institution of the proceedings, her propounding of an arguable case not likely to be struck out and not doomed to failure.
17 In his judgment, Heydon JA has set out the portions of the judgment of the trial judge specifically attacked by the claimant. Cowdroy J referred to the approach of the courts with respect to costs following the determination of proceedings making particular reference to Oshlack. His Honour then said that there was no reason in principle to treat an application for security for costs differently to an application for costs. The claimant submits that his Honour's statement was erroneous.
18 Further, Cowdroy J said that it was impossible to assess the strength of the claimant's case at such a preliminary stage of proceedings, and, `in the absence of evidence that the application has strong prospects of success' (my emphasis), the respondent was entitled to security for costs.
Common ground on facts
19 It is important to acknowledge several uncontested propositions on the facts. The claimant is an impecunious pensioner living in Housing Commission accommodation and possessing no real assets. She is not employed. Her home is some 6 km from the proposed development. Further, her case was regularly commenced and was arguable. The application was bona fide and neither vexatious nor an abuse of process. It may or may not succeed at trial.
Section 69 and the common law rule
20 I agree with Heydon JA that the plain words of s 69(3) of the LEC Act should not be read down or construed in such a way as to conclude that the Land and Environment Court has no power to make an order for security for costs against an impecunious natural person.
21 While it appears to be accepted as part of the common law that an impecunious natural person is entitled to rely on the general rule that poverty is no bar to litigation, the express words of s 69(3) override any inherent jurisdiction inhibiting the making of security orders against impoverished natural persons. For a statement of the basic common law rule see Megarry V-C in Pearson v Naydler [1977] 1 WLR 899; 3 ALL ER 531 at 533 and 535. See also Cowell v Taylor (1885) 31 Ch D 34. The rule is said to be ancient and well established. For other examples of reference to the rule, see Orr v Lusute Pty Limited (1987) 72 ALR 617 and Young J (as he then was) in Morris v Hanley [2000] NSWSC 957 at [15].
22 It has been said that it will only be in rare instances that security will be ordered against an impecunious natural person. In Thune v London Properties Ltd [1990] 1 WLR 562, Bingham J (as he then was) said that impecuniosity of a personal plaintiff alone is never enough to confer a discretion to order security. This was echoed by Priestley JA in Brown when he stated that the establishment of a plaintiff's impecuniosity does not of itself automatically attract an order for security (see also Chang v Comcare Australia [1999] FCA 1677 at [25]).
23 Notwithstanding my agreement with Heydon JA as to the construction of s 69(3), I respectfully disagree with his contention that s 123 litigation is different from ordinary conventional litigation because there are very large numbers of potential applicants in Australia; and accordingly the general rule that poverty is not a bar to access falls away. On the contrary, in my view his Honour's reasoning may be seen to support the retention of the rule to s 123 proceedings and the like. It is of course a relevant factor to take into account but not a bar.
24 I also do not share Heydon JA's opinion that the ordering of security against an impecunious natural person does not deprive such person of any fundamental right because there are other potential applicants who could bring the proceedings. It seems to me that this fact is irrelevant. The provision in s 123 does not say that any person may approach the court except that an impecunious natural person may be ordered to provide security as to costs in order to be able to do so. The ordering of security for costs against an impecunious person, such as the claimant, will mean that she will, almost certainly, be shut out from exerting her right to bring, and have dealt with on the merits, litigation regularly commenced under s 123.
25 However, these matters do not alter my basic view that the plain words in s 69(3) should not be read down and construed so as to conclude that the Land and Environment Court could never make an order for security for costs against an impecunious natural person or that the discretion inherent in the s 69(3) must always be exercised to refuse to order security against an impecunious natural person.
Two errors by his Honour
26 I turn to the arguments by the claimant that the discretion miscarried. In equating costs and security for costs in the manner that Cowdroy J did, I agree with Heydon JA that his Honour was plainly wrong and that the judge's discretion miscarried.
27 Quite obviously there are very material differences between the principles to be applied in costs and security for costs. The principle distinction is that costs are usually determined after the completion of the litigation, all the evidence is in, the law considered and a decision given. The outcome of the litigation is central to a consideration of what order as to the costs of the litigation ought to be made.
28 By contrast, in the instant case, at the point of time when his Honour determined the subject application for security for costs, all that was known of the litigation was that it was regularly commenced and constituted an arguable case. The outcome could not be known. The strength of the claimant's case could not be assessed. The considerations which are applicable to a security for costs application must, of perforce, be quite different from those applied to the issue of costs following the completion of the litigation.
29 I am also in agreement with Heydon JA that Cowdroy J erred when he said that the opponent was entitled to security in the absence of evidence that the application had strong prospects of success. This must be in error and it cannot be the test that unless the claimant establishes that she has `strong prospects of success', the opponent is entitled to receive security for costs of a regular and arguable case. The strength of the claimant's case will, of course, be a factor in the exercise of the discretion.
Should the discretion be re-exercised by the court?
30 These two errors in the exercise of the discretion mean that his Honour's order must be set aside. Consequently, this court needs to determine whether it should re-exercise the discretion or remit it to the Land and Environment Court to carry out that exercise.
31 Bearing in mind the dearth of evidence tendered as relevant to the exercise of the discretion before Cowdroy J, I have weighed the possibility of a remitter. This would enable the Land and Environment Court to exercise the discretion according to law and potentially, if his Honour permitted, allow the parties to tender additional evidence relevant to the exercise.
32 However, I accept that the preferable and most convenient course would be for this court to re-exercise the discretion on the material which was before the Land and Environment Court.
Re-exercise of discretion
33 When the factors relevant to the discretion are examined, I am firmly of the opinion that the application for security for costs should be refused.
34 Here a natural person, resident within New South Wales, exercising a right given to her under s 123 of the EPA Act to seek to remedy or restrain a breach of the law, commences litigation which is regular on its face, properly instituted and accepted as arguable. That the claimant was unable to establish that she had reasonable prospects of success should not be a decisive reason to order security given the point of time that the strengths of the litigation was assessed, ie, shortly after its commencement when only the pleadings were available. Further, there is no challenge to the claimant's bona fides in the litigation.
35 In any event, it has been said that if a claim is prima facie regular on its face and discloses a cause of action, unless there is evidence to the contrary, a court should proceed on the basis that it has a reasonable prospect of success (see Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197 applying French J in Bryan E Fencott Associates Pty Limited v Eretta Pty Limited (1987) 16 FCR 497 at 509).
36 Indeed, courts ought to be disinclined to make orders which will have the effect of frustrating litigation. In Arnold v Queensland (1987) 73 ALR 607 at 613 Wilcox J said that care must be taken not to stifle an action which, in the interests of justice, ought to be determined on its merits.
37 An order for security for costs should not be used oppressively when it has the potential result of stifling a claim or shutting out an impecunious plaintiff.
38 Heydon JA points to the impecunious position of the claimant as a factor favouring an order for security. However, in my view, this factor can equally be seen as one favouring its refusal. I say that because it seems to me to be very plain that the order that the claimant provide security of $12,500 will almost certainly shut her out of the litigation and bring it to an end. She is a pensioner and has no real assets of any significance. She has no paid employment. Quite clearly, the claimant has no ability to come forward with the security ordered. This can have only one result: the proceedings will be dismissed for her failure to comply with the order.
39 In my view, the claimant's impecuniosity should not be a decisive factor for ordering of security. While the frustration of a claimant's right to litigate his or her claim because of impecuniosity does not lead to an automatic refusal of an order, it will usually be seen as a `powerful factor' in favour of its refusal, see Yandil Holdings Pty Limited v Insurance Co of North America (1986) 7 NSWLR 571 per Clarke JA.
40 I have weighed against these considerations the significant factor that, if the claimant fails and is ordered to pay the opponent's costs, the opponent will probably be deprived of any ability to recover them.
41 In my assessment a proper exercise of the discretion, giving due weight to all of the relevant factors, would be to refuse the application.
42 In the draft judgment of Young CJ in Eq, which I have read, his Honour mentions the potential floodgates that open standing provisions may release. By 2002, I had thought that this argument had been put to rest. In Oshlack at first instance ((1994) 82 LGERA 236 at 245) I mentioned that the opening of the gates had barely caused a `wetting of the wellies'. This was referred to by Kirby J in the High Court (at [121]). The Annual Reviews published by the Land and Environment Court since 1994 have confirmed my earlier remarks.
Proposed Orders
43 I would therefore propose the following orders:
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Order of Cowdroy J for security for costs given 18 June 2001 be set aside. In lieu thereof the application of the opponent before the Land and Environment Court be dismissed with costs.
4. The opponent is to pay the claimant's costs of the appeal but receive a certificate under the Suitor's Fund Act if otherwise entitled.
44 HEYDON JA:
Background
The claimant applied for leave pursuant to s 58(3) of the Land and Environment Court Act 1979 (NSW) to appeal against interlocutory orders of Cowdroy J in the Land and Environment Court made on 18 June 2001. Those orders stayed proceedings in that Court brought by the claimant until the claimant provided security for the costs of those proceedings in the amount of $12,500. The hearing before this Court proceeded on the basis that leave would be granted and argument as on the appeal was conducted accordingly.
45 The proceedings in the Land and Environment Court in which the claimant was the applicant were Class 4 proceedings initiated by an application dated 22 January 2001 and filed on 23 January 2001. The opponent was the first respondent and Maclean Shire Council was the second respondent.
46 The substantive paragraphs of the application were:
"1. A declaration that Development Consent 2000/0343 granted by the second respondent on 13 September 2000 is void and has no effect.
2. A declaration that use of Lot 11 DP 747253 for the purposes of a rural worker's dwelling is prohibited without the Development Consent of the second respondent.
3. An order that the first respondent, its servants, employees, agents and contractors be restrained from occupying the dwelling referred to in Development Consent 2000/0343 for the purposes of a rural worker's dwelling."
47 The claimant's solicitors filed Amended Points of Claim dated 19 March 2001. Paragraphs 3-20 were as follows:
"3. On 12 February 1998 the Second Respondent granted development consent (the `First Consent') to the First Respondent for the erection of a dwelling house on Lot 11 DP 747253, known as 267 School Road Palmers Island (`the Land'). It was a condition of the First Consent that an existing dwelling on the Land (`the Existing Dwelling') be demolished, removed or otherwise rendered uninhabitable.
4. On 2 February 1999 the First Respondent lodged a development application (the `Second Development Application') with the Second Respondent for the use of the Existing Dwelling. On 20 May 1999 the Second Respondent refused the Second Development Application.
5. On 27 July 1999 the First Respondent lodged a development application (the `Third Development Application') with the Second Respondent for the temporary use of the Existing Dwelling. On 17 August 2000 the Second Respondent refused the Third Development Application.
6. The First Respondent appealed to the Land and Environment Court against the decision of the Second Respondent to refuse consent to the Second and the Third Development Applications.
7. On 19 January 2000 the Court dismissed the appeals and refused to grant consent to the Second and Third Development application.
8. On 21 June 2000 the First Respondent lodged a development application (the `Fourth Development Application') with the Second Respondent to erect and use the Existing Building as a rural workers dwelling (`the Proposal').
9. By Notice of Determination dated 20 September 2000 the Second Respondent purported to grant development consent to the First Respondent (the `Second Consent') for the erection and use of the Existing Building.
Jurisdictional Fact - Commercial Farming Purposes
10. Maclean Local Environmental Plan 1992 (`the Plan'), and in particular clauses 15 and 16 of the LEP, apply to the land.
11. Clause 16 of the LEP relevantly provides that the clause applies to land used for commercial farming within the rural zone and that First respondent [sic] shall not consent to the erection of a rural worker's dwelling on land to which the clause relates, unless:
(b) the needs of the commercial farming activity genuinely require that rural workers reside on the land,
...
(d) the rural worker to occupy the dwelling is to be directly and permanently employed by the owner of the land for commercial farming purposes on that land,
12. The land is not used for commercial farming purposes.
Particulars of paragraph 12
The use of the Land, when carried out on the land, would not be sufficient to maintain an average family in average seasons and circumstances.
13. Accordingly clause 16 does not apply to the proposal.
14. Clause 15 of the LEP relevantly prohibits the granting of consent for the erection of a dwelling-house on land in any rural zone unless the dwelling-house falls within one of the categories found in clause 15(a)-(d). The dwelling house does not fall within any of these categories.
Jurisdictional Fact - Genuine Requirement for Residence
15. In the alternative to paragraphs 12-14 above, the needs of the proposed commercial farming activity do not genuinely require that rural workers reside on the Land.
Failure to be Satisfied as to requirement of Clause 16 of the LEP
16. Further and in the alternative to paragraphs 12-15 above, the Second Respondent failed to satisfy itself that the land is used for commercial farming purposes.
Particulars of paragraph 16
The Second Respondent failed to satisfy [itself] that the use of the Land is sufficient to maintain an average family in average seasons and circumstances.
17. In the alternative to paragraphs 12-16 above, the Second Respondent failed to satisfy itself that the needs of the proposed commercial farming activity do not genuinely require that rural workers reside on the Land.
Wednesbury Unreasonableness
18. The decision of the Second Respondent in granting consent to the Fourth Development Application was unreasonable in the Wednesbury sense.
Particulars of paragraph 18
No council acting reasonably could have decided that:
(a) the use of the Land is sufficient to maintain an average family in average seasons and circumstances; or
(b) the needs of the proposed commercial farming activity genuinely require that rural workers reside on the Land.
19. The Proposal is substantially the same development as that proposed in the Second and Third Development Application which were the subject of appeal to the Land and Environment Court, which appeals were dismissed by the Court.
20. Accordingly the First Respondent has no right to lodge the Fourth Development Application."
48 Each of the respondents filed Points of Defence dated 12 and 19 April 2001 respectively. Each of those documents put some allegations in issue and admitted others.
49 The reference in the application to "Class 4" is a reference to s 20 of the Land and Environment Court Act 1979 (NSW). Section 20(1)(c) provides:
"The Court has jurisdiction (referred to in this Act as `Class 4' of its jurisdiction) to hear and dispose of:
...
(c) proceedings under section 123 of the Environmental Planning and Assessment Act 1979,
... ."
Section 123(1) of the Environmental Planning and Assessment Act 1979 provides:
"Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach."
50 The Amended Points of Claim proceed on the basis that the development consent granted by the second respondent to the opponent on 20 September 2000 (as alleged in paragraph 9 of the Amended Points of Claim) or 13 September 2000 (as alleged in the Application) was invalid because it did not comply with clauses 15 and 16 of the Maclean Local Environmental Plan 1992; and that since the consent was invalid, the proposed development was in contravention of s 76(1) of the Environmental Planning and Assessment Act. Each of the declarations as sought in paragraphs 1 and 2 of the Application may be described as "an order to remedy a breach of" that Act within the meaning of s 123(1). And the injunction sought in paragraph 3 of the Application may be described as "an order to ... restrain a breach of" that Act within the meaning of s 123(1).
51 By a Notice of Motion dated and filed on 7 May 2001 supported by three affidavits, the opponent/first respondent sought security for costs against the claimant. The primary judge heard the Notice of Motion on 30 May 2001 and granted the orders complained of on 18 June 2001.
The reasoning of the primary judge
52 The primary judge made the following findings of fact:
"The applicant is a pensioner residing in Yamba, some distance from the site. The applicant is a member, but not an office holder, in an organisation known as the Yamba Angourie Wooloweyah Community Association. At a public meeting of that Association held on 26 February 2001 the applicant's proceedings were discussed. In the course of the meeting the applicant said:-
I do not have the sort of money required to fight a court case. I will gratefully accept any donations from anyone present at the meeting. Anything you can afford, even 50 cents.
The Court is satisfied that the applicant is impecunious. In the event that the first respondent is successful in the proceedings, the applicant would not be able to meet any order for costs in view of her financial circumstances. The Court also accepts the submission from her counsel that the proceedings have been instituted as public interest litigation pursuant to s 124 of the Environmental Planning and Assessment Act 1979 (`the EP&A Act')."
53 The primary judge said that the Land and Environment Court had power to order security for costs.
54 He found one source of that power in s 69 of the Land and Environment Court Act. The relevant subsections provide:
"(1) In this section, costs includes:
(a) costs of or incidental to proceedings in the Court,
(b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and
(c) in the case of proceedings transferred or remitted to the Court, the costs of or incidental to the whole proceedings, both before and after the transfer or remittal.
(2) Subject to the rules and subject to any other Act:
(a) costs are in the discretion of the Court,
(b) the Court may determine by whom and to what extent costs are to be paid, and
(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.
(3) The Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party.
(4) The security referred to in subsection (3) shall be of such amount, and given at such time and in such manner and form, as the Court directs.
(5) The Court may reduce or increase the amount of security ordered under subsection (3) to be given and may vary the time at which, or the manner or form in which, the security is to be given.
(6) If security, or further security, is not given in accordance with an order under this section, the Court may order that the proceedings be dismissed.
(7) The provisions of this section relating to security do not affect the operation of any provision made by or under any other Act or by the rules for or in relation to the furnishing of security."
55 The second source of the power to order security for costs identified by the primary judge was Pt 6 r 1 of the Land and Environment Court Rules; it adopts Pt 53 of the Rules of the Supreme Court of New South Wales, which contains provisions enabling the Supreme Court of New South Wales to order security for costs. Part 53 r 2(1) provides:
"Where, in any proceedings, it appears to the Court on the application of a defendant -
(a) that a plaintiff is ordinarily resident outside the State;
(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so;
(c) subject to subrule (2), that the address of a plaintiff is not stated or is mis-stated in his originating process;
(d) that a plaintiff has changed his address after the commencement of the proceedings with a view to avoiding the consequences of the proceedings; or
(e) that there is reason to believe that a plaintiff being a body corporate will be unable to pay the costs of the defendant if ordered to do so,
the Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given."
None of those paragraphs applied in this case, however.
56 Thirdly, the primary judge referred to s 23 of the Land and Environment Court Act, which provides:
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate."
57 The primary judge said it was not necessary to decide whether the Land and Environment Court had "an inherent power" to make orders for security for the costs. This was plainly correct in view of the existence of s 69. And s 69 makes it unnecessary to decide whether s 23 gives power.
58 Before this Court it was common ground that the Land and Environment Court had power to make orders for security for costs. The claimant, however, contended that she was an impecunious person who had instituted proceedings in regular fashion propounding an arguable case not liable to be struck out as vexatious or as an abuse of process and not doomed to fail. The claimant contended and the opponent denied either that the Land and Environment Court had no power at all, or no applicable power, to make orders for security for costs against a person in her position, or, if it did have any power, that the primary judge erred in exercising the discretion conferred by that power.
59 The essential part of the primary judge's reasoning opened with the following remarks about the court's approach to making costs orders:
"In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Kirby J said at 113:-
Inherent in the foregoing legislative innovation is a parliamentary conclusion that it is in the public interest that such individuals and groups be able to engage the jurisdiction of the Land and Environment Court, although they have no personal, financial or like interest to do so ... [T]he removal of the barrier to standing might amount to an empty gesture if the public character of an applicant's proceedings could in no circumstances be taken into account in disposing of the costs of such proceedings, either where they succeeded or (as here) where they failed.
When determining an application for costs a Court is obliged to consider [whether] any special circumstances exist sufficient to justify a departure from the usual rule that costs will generally follow the event. Such `special circumstances' will include the fact that the litigation is `public interest litigation' (see Kirby J in Oshlack at 115; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (Pearlman J, NSWLEC, 26 November 1998, unreported)). However such factor may not be sufficient by itself to warrant an exception to the usual practice that a successful party will or should be entitled to recover its costs (Timbarra Protection Coalition Inc v Ross Mining NL & Ors (Talbot J, NSWLEC, 5 May 1998, unreported). The guiding principle is that costs are compensatory (see Latoudis v Casey (1990) CLR 534). "
The primary judge then said:
"There is no reason, in principle, to treat an application for security for costs differently to an application for costs."
That statement was specifically attacked by the claimant before this Court.
60 The primary judge then said:
"The Court has been referred by each of the parties to decisions concerning applications for security for costs. In Razorback Environment Protection Society Inc v Wollondilly Council & Anor [1999] NSWLEC 8 Lloyd J reviewed the principles concerning security for costs applications in public interest litigation and determined that an order for security for costs should be made despite characterisation of the proceedings as `public interest' litigation.
The applicant has referred the Court to several authorities, such as F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306; Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (1994) 83 LGERA 107; Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310. These authorities do not displace the principles repeatedly followed in this Court as referred to in Razorback.
Each application for security for costs must be considered on its merits. Whilst public interest litigation per se may be insufficient to justify a departure from the usual rule, other factors may exist from which the Court can conclude that an order for security should not be made. Those cases may, for example, involve an apparent breach of the planning laws or conduct which suggests that, on its merits, the applicant has established a strong prima facie case for relief (see Ryde Pool Action Group Inc v Ryde City Council [1999] NSWLEC 96).
Accordingly I concur with the observations of Pearlman J in Town Watch Incorporated v Grafton City Council (1997) 93 LGERA 401 at 405 that the mere fact that the proceedings are brought pursuant to the `open standing' provision of s 123 of the EP&A Act to remedy an alleged breach of that Act `is not, of itself, sufficient to refuse to grant security for costs'. In Razorback Lloyd J at par [20] observed that the matters to be considered on an application for security for costs include `the nature of the litigation and the strength of the applicant's case'. At this preliminary stage of the proceedings it is not possible to assess the strength of the applicant's case, and in the absence of evidence that the application has strong prospects of success, the respondent is entitled to be provided with security to avoid the risk of an order for costs in his favour will be unfulfilled."
That last sentence was also specifically attacked by the claimant before this Court.
61 After noting that the figure of $23,500 claimed by the first respondent as the sum in which security should be ordered was unsupported by any calculation, the primary judge proceeded to make the orders attacked.
Common ground
62 It was common ground that the claimant was a natural person resident within the jurisdiction of New South Wales, that her case was regularly commenced, that it was arguable, and that the proceedings were not vexatious, or an abuse of process, or doomed to fail. These propositions were common ground in the sense that the claimant asserted them, the opponent did not deny them before this Court, and there was no evidence admitted before the primary judge which was capable of contradicting them. There is no reason to doubt them. It was also common ground that the claimant was impecunious and could not satisfy any adverse costs order. Her sole means of support was a pension. She was not engaged in work. She had no assets of any significance. She resided in a Housing Commission flat at Yamba, over six kilometres away from the proposed development. Further, it was common ground that though as Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 showed, there was power not to make a costs order against the claimant, and some real possibility that it might not be made, the claimant "may well be at risk of an adverse costs order", as her legal representative said to the primary judge.
63 It was also common ground that none of the cases relied on by the primary judge were identical to the present. Razorback Environment Protection Society Inc v Wollondilly Council [1999] NSWLEC 8, Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (1994) 83 LGERA 107, Ryde Pool Action Group Inc v Ryde City Council [1999] NSWLEC 96 and Town Watch Inc v Grafton City Council (1997) 93 LGERA 401 were all cases in which the applicant or appellant against whom the security application was made was a body corporate in relation to which there was reason to believe that it would be unable to pay the other party's costs if ordered to do so. That is, none of the relevant persons were natural persons. Those persons, as impecunious bodies corporate, fell within Pt 53 r 2(1)(e) of the Supreme Court Rules. Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310 involved applicants who were natural persons, but they were said by the court to have brought the proceedings for an improper purpose. That circumstance distinguished them from the present claimant. Accordingly the submissions advanced to this Court are of a kind which has not been the subject of any existing authority in either the Land and Environment Court or this Court.
The claimant's approach
64 Since the claimant was attacking a discretionary decision on a matter of practice and procedure, it was necessary for her to demonstrate that the primary judge had made an error of legal principle, or had made a material error of fact, or had taken into account some irrelevant matter, or had failed to take into account, or gave insufficient weight to, some relevant matter, or had arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. In relation to that enterprise the claimant advanced submissions which may be grouped under five heads.
65 First, she submitted that a person in her position - a natural person resident in New South Wales, with a regularly commenced and properly pleaded and arguable cause of action advanced in proceedings which were not vexatious or an abuse of process and who was not attempting to oppress any respondent - could never have security ordered against her, because the court had no power to make such an order.
66 Secondly, and alternatively, if there was power to make an order for security for costs against such a claimant, security would only be ordered against a person in her position in "most extraordinary circumstances" which would "frequently amount to vexation". This construction did not differ much from the first construction, since circumstances amounting to vexation would take the case outside the first construction.
67 Thirdly, a variant of each of the first two arguments was propounded. The variant was that even if there were power to make an order against a person in the claimant's position, either it could never be a relevant factor favouring the order that she lacked the assets to meet a costs order, or it would not be relevant except in most extraordinary circumstances.
68 Fourthly, the claimant submitted that the primary judge erred in saying:
"There is no reason, in principle, to treat an application for security for costs differently to an application for costs."
69 Fifthly, the claimant submitted that the primary judge erred in saying:
"At this preliminary stage of the proceedings it is not possible to assess the strength of the applicant's case, and in the absence of evidence that the application has strong prospects of success, the respondent is entitled to be provided with security to avoid the risk of an order for costs in his favour will be unfulfilled."
Construction of s 69(3)
70 The claimant's written submissions did not place her first three arguments to the fore: rather the written submissions concentrated on the fourth and fifth arguments. The first, second and third arguments came into greater prominence in the course of oral address. But even in oral address the claimant offered little detailed reasoning in support of them. Each of the first two arguments must be based on a particular construction of s 69(3) and must depend on a reading down of the quite general words of s 69(3).
Limits on the relevant factors to be considered
71 It is convenient initially to deal with the third argument. The third argument in substance was that the apparently unconfined discretion conferred by s 69(3) could be, and was in fact, confined by its "subject matter and ... scope and purpose", which meant that to make a security order on the basis of the claimant's impecuniosity was "definitely extraneous to any objects the legislature could have had in view" in the light of the "terms and subject matter of the statute" - its "provisions, ... nature or ... subject matter". The words just quoted were not employed by the claimant, but are well-known words of Dixon J's which capture her contention and which have frequently been cited: eg Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 758; Water Conservation and Irrigation Commission (New South Wales) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505; R v Australian Broadcasting Tribunal; ex p 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49. These principles are normally applied in determining the extent of discretions conferred on administrative decision makers, but they apply equally in evaluating the extent of judicial discretions: Adam v R [2001] HCA 57; (2001) 183 ALR 625 at [65]. Indeed, they have been applied in the High Court to the construction of the equally wide language of s 69(2): Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] and [31].
72 But this third argument, like the first two, must ultimately rest on a process of statutory construction. The language of Dixon J is language stating principles of statutory construction: John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145 at 151. As Latham CJ said in Browning's case at 496: "The intention of the legislature is to be ascertained from the words of the statute as applied to the subject matter with which the statute deals." There is no difference between, on the one hand, construing s 69(3) so as to prevent the court having power to order security against a natural person on the grounds of poverty alone either at all, or only in extraordinary circumstances, and, on the other hand, construing s 69(3) to require the Court to exercise the discretion conferred by the power where security is sought against a natural person on the grounds of poverty alone against granting security in every case on the ground that that is an irrelevant consideration. The latter approach might have the superficial advantage of apparently avoiding the evident difficulty that there are no express words in s 69(3) supporting the claimant's position. But that supposed advantage does not in truth exist, because the argument assumes that a discretion invoked on the grounds of a plaintiff's poverty can only ever be exercised one way. A discretion which can be exercised only one way, or a discretion which can never take impecuniosity into account as the sole ground for a security order, is to that extent not in truth a discretion at all, and the apparent existence of the discretion is only illusory. The provision seemingly conferring the "discretion" is in truth to be construed as not in fact conferring it. The provision can only be so construed if one or other of the first two arguments of the complainant is sound. Hence analysis of the merits of the third argument cannot go beyond analysis of the merits of the first two, and no more need be said of it.
The first two arguments on construction: their basis
73 The first two arguments are arguments advancing a particular construction of s 69(3). On the first argument, s 69(3) must be read as if it contained at the end the additional words "provided that that party is not a natural person resident in New South Wales, with a regularly commenced and properly pleaded and arguable cause of action advanced in proceedings which are not vexatious or an abuse of process and who is not attempting to oppress any respondent". On the second argument, s 69(3) must be read as if it contained those words, with the further concluding words ", except in most extraordinary circumstances".
74 On what basis could s 69(3) be read as if either set of words had been used?
75 One basis propounded was that if the proposed construction were not adopted, it would be open to the Land and Environment Court to make orders for security for costs depriving a citizen such as the claimant "of a fundamental right of all citizens, namely, the right to have [the] Court determine her case on its merits" (emphasis added).
76 Another basis propounded was that if the proposed construction were not adopted, the court would have power summarily to deny the claimant, a resident of New South Wales who had regularly instituted an arguable case, of a determination of the merits of her case without sufficient justification. This argument assumed that the claimant's poverty, considered as a factor amongst all other relevant factors, was incapable of constituting sufficient justification. The argument in this respect hinted at the proposition that s 69(3) should be read as if it incorporated a supposed traditional rule that security would not be ordered against a natural person solely on the ground of poverty.
77 A third basis for the narrow constructions of s 69(3) which the claimant propounded was that the adjectival power granted by s 69(3) of the Land and Environment Court Act should be exercised so as to enable the carrying out of the purposes of the substantive powers conferred by s 123(1) of the Environmental Planning and Protection Act, particularly in the light of the object of that Act recorded in s 5(c), namely "to provide increased opportunity for public involvement and participation in environmental planning and assessment". The claimant submitted that s 123(1):
"abolishes the traditional rule that it is necessary for someone to demonstrate a particular interest or a special interest, over and above that suffered by the general public, in order to be entitled to sue.
That provision is one which, in its historical context, might be thought to be a significant reform by the Parliament, and there is no doubt that it was done in order to ensure that environmental controversies are able to be litigated by persons such as the applicant in these proceedings. If one were to have an adjectival power, the power to [order security for] costs, and in the factual circumstances of this case - arguable case, not liable to be struck out, et cetera - and, for the first time, to erect a general rule or to make an order in those circumstances that security be provided, the effect of such an exercise as the adjectival power would be to significantly erode the reform which Parliament thought important."
The claimant submitted that s 69(3) had to be read against a well-known background - that in the late 20th century environmental controversies between poor people and rich companies were and remain commonplace. In short, it was submitted that s 69(3) should be read down so as to conform to the construction which the claimant gave to s 123(1) in the light of the mischiefs with which it was dealing.
The first two arguments on construction: contrasts between s 69(3) and other enactments
78 There is one significant contrast between s 69(3) of the Land and Environment Court Act and other provisions relating to security for costs. The Supreme Court Act 1970 (NSW), for example, confers no express power to order security for costs. Section 124(1)(a) gives power to make rules about practice and procedure, and Pt 53 r 2(1) is such a rule relating to security for costs, though a rule in much narrower terms than s 69(3). In particular Pt 52 r 2(1)(e) limits power to make orders against plaintiffs on the grounds of inability to pay costs to plaintiffs which are bodies corporate. Section 1335(1) of the Corporations Law 2001 (Cth) provides:
"Where a body corporate is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the body corporate will be unable to pay the costs of the defendant if unsuccessful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given."
That too is in much narrower terms than s 69(3). Earlier provisions to that effect operating in England include the Joint Stock Companies Amendment Act 1857 [20 & 21 Vic c. 14], s 24; the Companies Act 1862 [25 & 26 Vict c 89], s 69; the Companies (Consolidation) Act 1908 [8 Edw VII c 69], s 278; the Companies Act 1929 [19 & 20 Geo V c 23], s 371; and the Companies Act 1948 [11 & 12 Geo VI c 38], s 447. In New South Wales like provisions include: Companies Act 1874 [37 Vict No 19], s 99; Companies Act 1899 [63 Vict No 40], s 259; Companies Act 1936, ss 360 and 365(2); Companies Act 1961, s 363 and Companies (New South Wales) Code, s 533(1). A similar idea underlies rules of court such as the Rules of the Supreme Court of New South Wales, Pt 53 r 2(1)(e).
79 The fact that these enactments are in much narrower terms than s 69(3) highlights the difficulties of the task which the claimant is undertaking in seeking to contend that s 69(3) should be read more narrowly than its terms suggest.
80 That there was a general rule (whether it was an absolute ban or whether it was a powerful discretionary factor) against ordering impecunious plaintiffs to provide security must be remembered in considering the form of applicable legislation. The enactments just identified permitted orders against impecunious corporations, but said nothing about impecunious natural persons. In Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 at 527 Connolly J (Campbell CJ and Demack J concurring) said:
"A provision in these terms has been in the Companies Act since, at the latest, the Companies Act 1862 which was described by Sir Francis Palmer as the Magna Carta of co-operative enterprise. Plainly enough it was enacted with full knowledge of the ancient rule that the impecuniosity of the plaintiff should not deny him his day in court and in the view that sound reasons of public policy did not call for such a rule in relation to joint stock companies. So regarded it served to deny the application to them, in cases where security was sought against them, of the rule which applied to natural persons."
By parity of reasoning, when legislation such as s 69(3) uses general language, not limited by reference to impecunious corporations and without any exception in favour of impecunious natural persons, it is open to conclude that the "ancient rule" was not intended to survive. It is necessary, however, to consider an observation of Connolly J lest it might be thought to point against this. He said that the provisions permitting security orders against impecunious companies laid down "a principle which ... might well have been reached by the courts without any legislative assistance". Perhaps it might; but the courts never showed the slightest tendency to reach it. It cannot be argued that s 69(3) and other generally worded provisions should be read down to correspond with a general principle which the common law might have enunciated, but did not in fact ever enunciate.
The first two arguments on construction: similarities between s 69(3) and other enactments
81 On the other hand, there are close similarities between s 69(3) and the legislation relating to the Federal Court of Australia. Though this Court was not taken to them, the Federal Court authorities on that legislation offer some support for the claimant's position.
82 The Federal Court of Australia Act 1976 (Cth) s 56(1) provides, and since 1976 has in substance provided:
"The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her."
Section 56(2)-(5) corresponds with s 69(4)-(7) of the Land and Environment Court Act. Order 28 r 3(1) of the Federal Court Rules provides:
"Where, in any proceeding, it appears to the Court on the application of a respondent -
(a) that an applicant is ordinarily resident outside Australia;
(b) that an applicant is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the applicant will be unable to pay the costs of the respondent if ordered to do so; or
(c) subject to sub-rule (2), that the address of an applicant is not stated or is mis-stated in his originating process; or
(d) that an applicant has changed his address after the commencement of the proceeding with a view to avoiding the consequences of the proceeding,
the Court may order that applicant to give such security as the Court thinks fit for the costs of the respondent of and incidental to the proceeding."
83 There are cases suggesting that the general words of s 56(1) do not permit the Court to make security orders against natural persons solely on the grounds of their impecuniosity.
84 Thus in Barton v Minister for Foreign Affairs (1984) 54 ALR 586 at 592 Morling J said:
"It has never been the case that impecuniosity on the part of a plaintiff is a ground for ordering him to give security for costs. In Pearson v Naydler [1977] 3 All ER 531 at 533, Megarry V-C said: `The basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is, is ancient and well-established. As Bowen LJ said in Cowell v Taylor (1885) 31 Ch D 34 at 38, both at law and in equity `the general rule is that poverty is no bar to a litigant'. The power to require security for costs ought not to be used so as to bar even the poorest man from the courts.'"
He did not, however, explain why that "basic" or "general" rule survived the wide language of s 56(1). It was not necessary to do so, since though the applicant was an undischarged bankrupt, the ground for the security application was that he lived and worked in London, so that Order 28 r 3(1)(a) applied (at 587). Indeed, only two issues were debated: whether, once residence outside the jurisdiction was established, the court had any discretion to refuse the order; and, if an order was to be made, whether its quantum should exceed the costs of registering and executing a judgment for costs in England. In short, Morling J's observation was very much an obiter dictum.
85 In James v Australia and New Zealand Banking Group Ltd (No 1) (1985) 9 FCR 442 at 445 Toohey J said:
"All the applicants other than Yallambee Pty Ltd are natural persons. So far as they are concerned, the law is clear.
`The basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is, is ancient and well established. As Bowen LJ said in Cowell v Taylor (1885) 31 Ch D 34 at 38, both at law and in equity `the general rule is that poverty is no bar to a litigant'.' (Megarry V-C in Pearson v Naydler [1977] 1 WLR 899 at 902.)"
Like Morling J, Toohey J did not explain how the "basic" or "general" rule survived the enactment of s 56(1). He refused to make an order against the company, and said that the reason for not doing so applied equally in relation to the other applicants "if for any reason the well-established principle to which I have referred is inappropriate". The reason was that the application for security was made very late. Hence Toohey J's observation, like Morling J's, was only an obiter dictum.
86 In Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 at 53 Burchett J said, in a case where security was sought under the Companies (New South Wales) Code s 533(1) and s 56(1) against an impecunious company owned by an impecunious natural person:
"I think it is also relevant that the individual responsible for this litigation, Mr Cameron, is not sheltering behind a corporate shield in order to protect some assets of his own from liability to meet a costs order. In [Harper v Ariadne Australia Ltd (No 2) [1984] 2 Qd R 523 at 533] the Full Court of the Supreme Court of Queensland made it clear that in such a case the means of the individual concerned are `not really relevant'. What is relevant is that the company is not a stalking horse to enable someone else to evade personal responsibility. If he accepts responsibility, an impecunious natural person is entitled to rely on the general rule that poverty is no bar to a litigant: Barton v Minister for Foreign Affairs [1984] FCA 89; (1984) 2 FCR 463 at 469."
But again Burchett J did not explain how the "general rule" survived s 56(1). And there were various other factors supporting his refusal to make an order, though he did not attribute "decisive weight to any one of" them.
87 In Orr v Lusute (1987) 72 ALR 617 at 620 Sheppard J said:
"Section 56 of the Federal Court of Australia Act 1976 provides that the court or a judge may order a plaintiff in a proceeding in the court to give security for the payment of costs that may be awarded against him. But that broad grant of power has to be read in the light of the way the discretion to order security for costs has been exercised over the years. A commencing point for the consideration of the authorities is the decision of the Court of Appeal in England in Cowell v Taylor (1885) 31 Ch D 34, where Bowen LJ said (at 38): `The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity.'
....
The philosophy underlying that rule of the common law found expression in rules of court."
He then referred to Order 28 r 3(1)(b) and to the corresponding English rule. This reasoning, which corresponds with the basis propounded for the claimant's first argument, appears to rest on the approach sometimes employed in relation to important common law rights. While it is open to Parliament to modify or abolish those rights, statutes will not be construed to have those consequences in the absence of clear words. Some examples relate to the privilege against self-incrimination (Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 309); legal professional privilege (Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 90, 116-117 and 131); and the rules of natural justice (Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-110). The doctrine has been seen as applicable to general law principles which, though important, are much less old and much more controversial than those just discussed, such as the immunity of barristers: Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 at 215-6. There is one difficulty in the reasoning. If the philosophy underlying the common law rule had to be picked up in the express language of rules of court by permitting security to be ordered against impecunious corporations but not impecunious natural persons, that suggests that the philosophy underlying the common law would not have survived the enactment of those rules without the express language.
88 In Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962 at 50,514 French J assumed that "the venerable principle that mere poverty or insolvency on the part of a plaintiff will not of itself attract a requirement for security" survived the enactment of s 56(1). He did not explain how.
89 In Weston v Beaufils [1993] FCA 331; (1993) 43 FCR 292 at 298 Burchett J, in the course of refusing to make an order for security against a natural person, said:
"There is a very important principle that an impecunious natural person is entitled to rely on the general rule that poverty is no bar to a litigant."
He cited Barton's case and Cameron's case, but, as with the reasons for judgment in those cases, there was no explanation as to how the principle in question survived s 56(1). In any event, Burchett J said he was not satisfied that the applicant was impecunious, and he said that if there was impecuniosity it was partly caused by the transactions under consideration in the proceedings. There were thus independent grounds for his decision.
90 Where an "appeal" has been brought to the Federal Court in its original jurisdiction from the Administrative Appeals Tribunal, Order 53 r 8 of the Federal Court Rules provides:
"(1) The Court may, in special circumstances, order that such security for costs of appeal to the Court be given as it thinks fit.
(2) Subject to sub-rule (1), no security for costs of an appeal to the Court shall be required."
91 In Fletcher v Federal Commissioner of Taxation [1992] FCA 388; (1992) 110 ALR 233 at 238 Hill J, after referring to the leading English cases and the leading Federal Court authorities on s 56(1) in relation to first instance proceedings, denied that the impecuniosity of applicants who were natural persons would "as a general rule" be a ground for ordering security. Hill J also said:
"Certainly more than mere impecuniosity would be required before the court's discretion would be exercised in a way which could bring about the inability of a taxpayer to challenge in a court a question of law affecting his liability to income tax."
Again, there is no analysis of the interrelationship between the principle of the general rule and the enactments affecting the Federal Court, and there is an independent ground for the conclusion.
92 The dicta of the various judges of the Federal Court noted above do not conform with the views stated by Stephen Colbran, Security for Costs (1993). In paragraph 5.40 he said: "Perhaps the only true limitation on s 56 is that it must be exercised judicially". At paragraph 5.41 he said: "The Federal Court's jurisdiction is open-ended and arguably would enable an insolvent individual to be ordered to pay security for costs." However, these views are not linked to any analysis of the dicta in question.
93 In evaluating the above Federal Court cases, it is necessary to bear in mind what Olney J said in Thunderdome Race Timing and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 308:
"The Federal Court of Australia Act 1976 (Cth) appears to be unique in Australia in that having created a superior court of record (which presumably would enjoy the inherent jurisdiction to make orders for security for costs in the exercise of its power to regulate its own proceedings) s 56 makes specific provision for such a power both in proceedings at first instance and in its appellate jurisdiction. The section provides:
`(1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him.
(2) The security shall be of such amount and given at such time and in such manner and form, as the Court or Judge directs.
(3) The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.
(4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.
(5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.'
Given the purpose and function of the Federal Court of Australia Act, namely, to create a new superior court, it would seem that the very specific provisions of s 56 were intended to provide a comprehensive statement of the court's power to order security for costs. Had the intention been to merely preserve those powers which such a court in our legal system has traditionally enjoyed, there would have been no purpose enacting s 56, at least so far as proceedings at first instance are concerned. But Parliament has adopted the course of particularising the court's power in a way that leaves no scope for any inherent power in this field. Subsection (5) tends to support this view in that it preserves other statutes and the Rules of Court in relation to the operation of furnishing of security for costs. As the rule-making power is limited to making rules not inconsistent with the Act, it would not be possible to expand the court's power in this area by making a rule inconsistent with s 56, and indeed the Rules do not seek to do so."
94 If Olney J is correct, it follows that any restriction in the inherent jurisdiction inhibiting the making of security orders against poor natural persons has not survived: the problem is not one of whether an existing principle is cut down by a statute, but one of all existing principles being abolished and replaced by general language. And if Olney J is correct about s 56 in relation to the Federal Court, a similar position would appear to apply to s 69 in relation to the Land and Environment Court.
95 Another set of enactments which, like s 69(3) of the Land and Environment Court Act and s 56(1) of the Federal Court of Australia Act, is drafted in unrestricted terms relates to the High Court. The Judiciary Act 1903 (Cth) s 77S(1) provides:
"The Rules of Court may make provision for and in relation to the giving, in an appeal to the Court, of security for the prosecution of the appeal without delay and for the payment of costs that may be awarded against the appellant."
The High Court Rules, Order 70 r 7(1), provides:
"The Court or a Justice may, at any time on the application of a respondent to an appeal, order that the appellant give security, within a time to be limited by the order and in such amount as the Court or a Justice may fix, for the prosecution of the appeal without delay and for the payment of such costs as may be awarded by the Court to the respondent."
96 In DJE Constructions Pty Ltd v Maddocks (1981) 38 ALR 185 a natural person appellant had provided security for the costs of the appeal. The company which was the respondent to the appeal applied for increased security for costs. Gibbs CJ said that there was no doubt that the appellant would be unable to meet the costs of the appeal if he were unsuccessful. He continued:
"However, that does not mean, in my view, that it automatically follows that the respondent company is entitled to increased security for costs. The matter lies within the discretion of the court and all the circumstances have to be considered.
The circumstance that inclines me to the view that no increased security should be ordered is that the decision of the Court of Appeal rests on the ground that the appellant's claim to be recognized as a shareholder - and a substantial shareholder - in the company fails by reason of an illegality to which the company was a party.
...
The case is a somewhat peculiar one in that, if the appellant's claim is correct, he has a substantial proprietary interest constituted by shares in the company which would be more than sufficient to pay his debts.
If, on the other hand, he fails, those circumstances will not assist the company to recover its costs. Nevertheless, it appears to me that, since an order for increased security could, in these rather unusual circumstances, be used to prevent the appellant from having his case heard, and since that case raises what is undoubtedly an arguable question of law and since that question arises out of an illegality to which the company was a party, I consider that no increased security should be ordered."
It is significant that Gibbs CJ did not record any perception that the fact that the appellant was a natural person prevented any order for security against him on the grounds of his poverty or even that any particular weight should be given to that matter in the course of the discretionary decision being considered.
97 In Lucas v Yorke (1983) 50 ALR 228 a respondent applied for security for costs against the appellants. The appellants were natural persons: see Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 662. Brennan CJ dismissed the application. He said (at 228-229):
"Mr Lucas seeks an order for security for the costs of the appeal on the grounds that the appellants will be unable to meet the costs of the appeal if their appeal should fail. The inability of an appellant to meet the costs of an unsuccessful appeal is a relevant factor in exercising the discretion conferred by O 70, r 10, of the Rules of this Court [ie the present Ord 70, r 7], but it is no more than a factor to be weighed in all the circumstances (DJE Constructions Pty Ltd v Maddocks (1981) 38 ALR 185). The discretion is not fettered by a rule, such as the rule adopted by the Court of Appeal in Hall v Snowdon, Hubbard & Co [1899] 1 QB 593, that security for costs is ordinarily ordered when a respondent shows that the appellant, if unsuccessful, will be unable through poverty to pay the costs of the appeal. The discretion under O 70, r 10, is absolute, like the discretion under the High Court Procedure Act 1903 (Cth) considered by Rich J in King v Commercial Bank of Australia Ltd [1920] HCA 62; (1920) 28 CLR 289. I would respectfully adopt what Rich J said (at 292), mutatis mutandis, to the discretion now to be exercised: `The Legislature, however, has left absolute discretion to the court, and has done so without prescribing any rules for its exercise. In these circumstances no rules can be formulated in advance by any judge as to how the discretion shall be exercised. It depends entirely on the circumstances of each particular case. The discretion must, of course, be exercised judicially, which means that in each case the judge has to inquire how, on the whole, justice will be best served, whether by altering the amount and, if so, to what extent, or by letting it stand unaltered.'"
He then indicated that if the respondent was, as the appellants contended, liable, the impecuniosity of the appellants would stem from the contraventions complained of. He then concluded (at 230):
"It is an important consideration that the making of an order for security for costs will effectively shut out an appeal designed to recover losses which have caused the appellants' impecuniosity: see Farrer v Lacy, Hartland & Co (1885) 28 Ch D 482 at 485. That factor has additional weight if the question on which the appeal turns is an important question of law appropriate for consideration by this court. I do not stress the importance of the question for determination lest the public interest in the resolution of that question override the interests of the parties (cf Kardynal v Dodek [1978] VR 414). However, justice would not be best served in the circumstances of the present case by shutting out the appeal and I decline to make an order for security."
Again, Brennan J did not indicate any perception that there was any general or absolute bar to ordering security for costs against an impecunious natural person, or that that person's impecuniosity had any particular relevance as a discretionary factor. It was an "important consideration" that to make the order would stop an appeal designed to recover losses, allegedly brought about illegally, which caused the appellants' impecuniosity - but not a conclusive one.
98 It is true that the High Court cases relate to security for the costs of appeals, and in this area under the general law there was an exception to the rule forbidding the making of security orders against impecunious natural persons. But the significance of the High Court cases is their stress on the generality of the statutory language. While there is no direct collision between the enactments relevant to the High Court and any principle of the general law, the High Court cases show no disposition to do anything other than give the relevant language its natural meaning so as to produce a broad discretion.
The first two arguments on construction and the general law rule
99 What was the general law rule? In Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 at 530 Connolly J spoke of:
"the long-standing principle ... that the door of the court should not be barred to a prospective plaintiff, resident within the realm, because he is impecunious. Thus as between residents within the jurisdiction, prosecuting what could properly be described as their own suits, the law required the defendant to accept the risk that the plaintiff might not be able to satisfy the order as to costs."
In Sykes v Sykes (1869) LR 4 CP 645 at 647 Bovill CJ said:
"By the law of this country a party is not precluded from enforcing his rights in a Court of law by reason of his poverty. In many cases, no doubt, the inability of an unsuccessful litigant to pay costs to his successful adversary works hardship; but it is for the legislature to provide a remedy, not for us."
The issue under debate in these proceedings is whether s 69(3) has provided a remedy. At 650 Brett LJ said: "Insolvency alone is not a ground for compelling security." In Pearson v Naydler [1977] 3 All ER 531 at 533 Sir Robert Megarry V-C said:
"The basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is, is ancient and well-established. As Bowen LJ said in Cowell v Taylor (1885) 31 Ch D 34 at 38, both at law and in equity `the general rule is that poverty is no bar to a litigant'. The power to require security for costs ought not to be used so as to bar even the poorest man from the courts."
100 In Cowell v Taylor (1885) 31 Ch D 34 at 38, Bowen LJ said:
"The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. There is also an exception introduced in order to prevent abuse, that if an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security. In that case the nominal plaintiff is a mere shadow. The two most familiar classes of cases of this kind are cases where a person has divested himself of his interest and handed it over to some one else that the transferee may sue for him, and cases where a person who has commenced a suit divests himself of his interest during the course of the suit in order that another person may carry it on for his benefit. Those are the common cases, I do not say that there may not be others."
101 By "basic rule" Sir Robert Megarry V-C meant, and by "general rule" Bowen LJ meant, that the rule is a strict one, though it is subject to specific exceptions (eg in relation to appeals, and nominal plaintiffs). They did not mean that generally insolvent plaintiffs will not be ordered to provide security, unless in the specific circumstances of a particular case a court thinks it just to make the order. As Baggallay LJ said in Cowell v Taylor at 37: "the rule is that any one may sue without giving security, in any but certain excepted cases." While it is possible that the "rule" is less absolute than these formulations would suggest, and while there may be room for debate about the true nature of the rule (Morris v Hanley [2000] NSWSC 957 at [11]- [21]), whatever the scope of the rule, the claimant contends that it has not been abolished by s 69(3). In considering that submission, it is convenient to assume that the rule is an absolute rule, and that it is a rule of fundamental importance.
102 There is, however, one significant difference between the type of litigation to which the traditional rules as to security for costs applied, including the rule to which the claimant appeals, and s 123(1) litigation. Leaving aside instances of statutory standing, leaving aside the role of the Attorney-General (acting either alone or on the relation of another), and leaving aside the capacity of citizens to utilise the prerogative writs to control government action, most civil litigation was traditionally conducted by one person or a small group of persons seeking to vindicate rights enforceable only by that person or persons. If D broke a contract to which P was the only other party, in general only P could enforce it. If D committed a tort against P and no-one else, in general only P could complain. Hence if P were impecunious, the effect of ordering a stay until security for D's costs was provided was to prevent D's breach of the law from being remedied at all. In its practical operation, the rule against orders that impecunious natural persons provide security for costs overlaps with the disinclination of courts, in their discretion, to make orders the effect of which would be to frustrate the particular litigation. So far as D's conduct extended beyond actionable damage to P alone and damaged the public, any plaintiff had to comply with the criteria for standing stated in Boyce v Paddington Borough Council [1903] 1 Ch 109, which, even as modified by such High Court cases as Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493, were not easy to satisfy. But provisions permitting "any person" to commence litigation have abolished standing requirements. Like the equivalent words in s 80(1) of the Trade Practices Act 1974 (Cth) (Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591), the words "any person" in s 123(1) are not to be read as meaning anything different from what they say: Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383 at 386-7. It is true that before the enactment of s 80 in 1974 and s 123 in 1979, there were numerous statutes granting standing to affected persons or to any person. But these statutes tended to operate in specific and limited areas. They did not apply in fields as extensive as the fields of human activity to which the Trade Practices Act and the Environmental Planning and Assessment Act apply. They did not alter the general character of civil litigation as being litigation between one or a small number of injured plaintiffs and one or a small number of defendants. Personal right and remedy were generally closely linked. If a plaintiff was debarred by a stay until provision of security from proceeding with litigation, the wrong committed or threatened by the defendant was incapable of remedy. That is not true where standing is wide and unrelated to a legal wrong specifically injuring the particular plaintiff. Under s 123(1) any natural person in the world can sue, and any corporate person. It is true that any impecunious corporate person can be ordered to provide security. It is also true that any person not resident in New South Wales can be ordered to provide security under Pt 53 r 2(a). But it has been held that because of s 117 of the Commonwealth of Australia Constitution Act 1900 (Imp) [63 & 64 Vict c 12] that provision is only valid to the extent that it permits orders against persons resident outside the Commonwealth. (This was held in Australian Building Construction Employees' & Builders' Labourers' Federation v Commonwealth Trading Bank [1976] 2 NSWLR 371; it was doubted in Rajski v Computer Manufacturing and Design Pty Ltd [1982] 2 NSWLR 443 at 451; that doubt was in turn rejected in Ceil Comfort Insulation Pty Ltd v ARM Equipment Finance Pty Ltd [2001] NSWSC 28 at [52]- [55].) That leaves nearly 20,000,000 natural persons capable of enforcing the Environmental Planning and Assessment Act, together with however many corporations there are in Australia. Even if many of the natural persons and many of the corporations are impecunious, there are large numbers of potential plaintiffs remaining. That proposition remains true even if Pt 53 r 2(1)(a) is entirely valid, for New South Wales has a large population of solvent human and corporate persons. The claimant in argument to this Court made the point that it can take time for persons concerned about breaches of environmental law to raise money to conduct litigation or to find plaintiffs with the financial strength to provide security, and time limits for challenging illegal action are often short. Even if these considerations are taken at their highest, litigation under s 123(1) is still of a totally different kind from the type of litigation in which the courts worked out the general rule that poverty did not bar access to the court.
The first two arguments on construction and the joint judgment in Oshlack's case
103 In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, which analysed the factors relevant to the exercise of the discretion to order costs under s 69(2), Gaudron and Gummow JJ made two points about s 69 in general which bear on the claimant's arguments. The first is at [21]:
"The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply."
The last sentence refers to Knight v F P Special Assets Pty Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205, where Gaudron J said:
"It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse."
104 Secondly, Gaudron and Gummow JJ also said in Oshlack's case at [45], after analysing legislation relating to costs and the ranges of costs orders that may be made:
"This background suggests that, in its operation upon litigation under s 123 ... , s 69 ... is not to be narrowly construed. Further, it is applicable to new species of litigation and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation."
The first two arguments on construction: conclusions
105 The two constructions of s 69(3) advanced by the claimant are incorrect.
106 In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at [14] Gleeson CJ and McHugh J said that the word "any" in s 80(1) of the Trade Practices Act 1974 (Cth) "does not lend itself to a restrictive interpretation". "Any" is "a word which ordinarily excludes limitation or qualification and which should be given as wide a construction as possible": The Victorian Chamber of Manufacturers v The Commonwealth [1943] HCA 19; (1943) 67 CLR 335 at 346. Section 80(1) is in similar form to s 123(1). Thus when s 69(3) provides that the Court may order "a party instituting proceedings in the Court to give security", it provides that the Court may order any person who has become a party in that way to give security. It is impossible to construe s 69(3) as referring not to any party, but only those who do not share the claimant's characteristics.
107 There is nothing in the specific express words of s 69(3) supporting the claimant's constructions of that sub-section. Nor is there in any other part of the Land and Environment Court Act, or in s 123(1) of the Environmental Planning and Assessment Act. The purposes of the legislation no doubt include the purpose that its own provisions on the subject of environmental planning and assessment should be obeyed, and s 123(1) facilitates that purpose. But that purpose can be fulfilled compatibly with security for costs orders being made against some impecunious natural person plaintiffs. If the fact that some impecunious plaintiffs might not be able to prosecute proceedings were to compel a narrow construction of s 69(3), it would be a construction which would be highly artificial.
108 To adopt the words of the joint judgment in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [45], just as the power to order costs under s 69(2) is "applicable to new species of litigation", and just as "the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation", so the power to order security under s 69(3) is not to be narrowly construed because it is applicable to new species of litigation in which there are varied interests at stake. The process of deciding when to order security against impecunious natural person plaintiffs in particular might involve new forms of analysis; but if s 69 is not to be narrowly construed, the possibility of making security orders against persons in that class must be open under s 69(3).
109 To construe s 69(3) as permitting security orders against all plaintiffs, including impecunious natural persons, does not deprive persons in the position of the claimant of any fundamental right. A citizen in her position who brought a case had a right under the general law to have her case determined on its merits even if she were impecunious because if she could not prosecute her case, no-one could. But the proceedings she has brought under s 123(1) are not her case in the sense to which the rule about impecunious plaintiffs generally applied. The proceedings she has brought are not specifically hers: anyone could have brought them. There was justification for the general law rule so far as it assisted enforcement of the law by the only person who suffered from a breach of the relevant rule of law and the only person who could enforce it. A statutory change in that rule effected by s 69(3) which prevents persons like the claimant from proceeding with s 123(1) litigation while leaving many others able to do so does not prevent the merits of the controversy from being determined. The purposes of the legislation can be vindicated by those other persons. The construction of s 69(3) which its words suggest as the only available one does not significantly evade or frustrate the reform effected by s 123(1). That construction is also supported by contrasting the language of s 69(3) with the narrower language employed from time to time over the years in companies legislation and rules of court.
110 Though the claimant did not rely on them, the Federal Court cases on s 56(1) of the Federal Court of Australia Act should not be applied to s 69(3). None of them explain how s 56(1) relates to the general law rule. In all of them the result would be justified apart from the general law rule. While the general law rule is of a kind which would call for clear language if it were to be abolished, it is hard to see how language much clearer than that used in s 69(3) could have been employed.
The claimant's fourth argument
111 This argument was that the primary judge erred in saying: "There is no reason, in principle, to treat an application for security for costs differently to an application for costs."
112 The claimant submitted:
"There are however, several reasons of principle to treat an application for security for costs differently to an application for costs.
An application for costs is ordinarily determined after the proceedings (or a part of the proceedings such as a motion) has been completed. It is the existence of an outcome, or `event', upon which the general rule that costs follow the event, operates. In contrast, an application for security for costs is ordinarily determined in advance of any outcome or `event'.
When there is an outcome, or `event', there is justification for treating one party as a victor entitled, in the ordinary case, to the benefit of what his Honour described as `the guiding principle ... that costs are compensatory' (judgment, paragraph 11). The victorious party, in the ordinary case, is entitled to be compensated for the expense of successfully defending proceedings. In contrast, at least where (as in this case), the proceedings are not vexatious, nor an abuse of process, nor doomed to fail, an application for security for costs is determined when the outcome of the proceedings is not known. Indeed, his Honour found (judgment, paragraph 15) that at this time it `is not possible to assess the strength of .. [Mrs Melville's] case'. Accordingly, the identity of the victor `entitled' to the benefit of the `guiding principle' to which his Honour referred has not yet been determined.
....
His Honour equated the position of an application for security with that of an application for an order for costs. The last sentence of paragraph 11 of the judgment shows that his Honour considered the positions to be no different `in principle'.
The positions are different in principle, because in determining an application for costs, attention is directed to the interests of the victor and its entitlement to be compensated for expense reasonably incurred ..., whereas, in determining an application for security, attention is not focused. Regard must also be had to the interests of the applicant/plaintiff and to its prima facie entitlement to an adjudication on the merits of its case. Regard must also be had to the public interest in ensuring that regularly instituted, arguable cases are decided on their merits."
113 The opponent endeavoured to give the sentence under attack a construction other than its plain meaning, but admitted that if it were read in its plain meaning it was wrong. It cannot be read in any sense other than its plain meaning, and the claimant's criticisms are sound. For that reason the primary judge's exercise of discretion miscarried.
The claimant's fifth argument
114 This argument attacked the following passage in the primary judge's reasons for judgment:
"At this preliminary stage of the proceedings it is not possible to assess the strength of the applicant's case, and in the absence of evidence that the application has strong prospects of success, the respondent is entitled to be provided with security to avoid the risk of an order for costs in his favour will be unfulfilled."
115 The claimant said:
"His Honour's judgment in this passage asserts, in effect, that a defendant/respondent is `entitled' to security in a regularly instituted, arguable case, unless the plaintiff/applicant can show `strong prospects of success'. In so holding his Honour erred."
116 The opponent submitted that to this point the primary judge had weighed various considerations independently of the strength of the claimant's case, and was saying that having balanced them, he thought a security order was justified unless there were strong prospects of success. This submission is not without force, but the better reading is the claimant's, and on that reading, the claimant's criticism is sound.
The re-exercise of the discretion
117 In the circumstances it is necessary for the discretion created by s 69(3) to be re-exercised. That could be done by the Land and Environment Court, or it could be done by this Court. Since the issues do not turn on any issue of credit there is no reason why this Court should not re-exercise the discretion.
118 The evidentiary material on which the primary judge was asked to exercise his discretion was sparse and no more extensive tenders took place before this Court. In particular, the claimant called no evidence; she refused to disclose any details of her financial position either to the opponent or to the court; she objected to the tender by the opponent of a bundle of documents on the ground of late service, and the primary judge upheld the objection; and she objected to factual statements made from the Bar table by the legal representative of the opponent. She was technically justified in the latter two steps, but the unevidenced factual statements at least were extremely innocuous. For example, in responding to the primary judge's reasonable request for an explanation of the background of the case, the legal representative of the opponent said:
"The property is at Palmers Island, which is between Maclean and Yamba on the Clarence River and it is a property of some 18.3 hectares .... It has always been a home and what has happened is that Mr Laviny has built his own home closer to the river and this home was always on the property and he sought to use it as a rural workers dwelling associated with certain horticulture that he was proposing to move into. He has been doing some small-scale beef farming and proposed to move into the dried flower arrangements and sought to have a rural worker to [sic] assist him in that program and to carry out necessary works associated with the expansion of that program."
The legal representative for the claimant then said this was not in evidence and not relevant. Before this Court it was conceded that the financial position of the persons behind the opponent was relevant, and the material bears on that.
119 The essential point, however, is that in circumstances where the claimant took every strict technical objection to the opponent's attempts to provide the court with information, and volunteered none herself, it is open to the court to draw inferences more strongly from such material as is available.
120 The claimant contended that among the relevant factors going to the court's discretion were:
(a) were the proceedings regular on their face?
(b) were they bona fide?
(c) were they arguable?
(d) had they been brought properly?
(e) had the proceedings been brought by a resident within the jurisdiction?
121 The claimant submitted that each question should be answered "yes". That may be accepted. The claimant also submitted that since the case was arguable, it had reasonable prospects of success. She relied on Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, where at 514 French J said:
"Where there is a claim prima facie regular and disclosing a cause of action, I see no reason why the court would, in the absence of evidence, proceed on the basis that the claim was other than bona fide with a reasonable prospect of success."
Certainly in the absence of contrary evidence the court would readily conclude that a claim was bona fide, and it was common ground that the claimant's claim here was bona fide. But it does not follow from the fact that a claim discloses a cause of action that it has a reasonable prospect of success. To state a cause of action which can survive a strike out application is to comply with formal and legal requirements; whether the cause of action so stated will succeed depends on other legal matters and evidentiary matters. The claimant here did not call any evidence herself, and successfully opposed the opponent's tender of a bundle of documents before the primary judge. Neither before the primary judge nor before this Court did the claimant engage in any legal analysis designed to show the strength of her case, no doubt because it would have been futile to do so without some factual material being in evidence. The submission that the claim should be seen as having any prospects of success beyond being arguable is to be rejected. In support of it was advanced the contention that what the actual use of the property in question was was a matter within the opponent's peculiar knowledge; even if it was, it does not follow that the claimant's case on that issue is of any particular level of strength.
122 The claimant then made two further submissions.
123 The first was put as follows:
"there is a tension between courts deciding cases on their merits according to law and ensuring everyone is protected all the time against the consequences of litigation, and that is a tension which exists. There will be cases where security is an appropriate remedy to ensure that the latter part of that equation is protected, but where one is faced with regular arguable proceedings, even more so with the public interest associated with them, but in any event if the private litigation analysis is correct, regular arguable proceedings that are not vexatious, then ultimately the public interest in the resolution of cases according to law is a greater public interest than the public interest in ensuring that people are not out of pocket.
At the end of the day resolving disputes according to law is the thing which distinguishes our society from how we solve disputes, short of shooting one another, at the end of the day, and that public interest in the rule of the law and the determination of arguable cases appropriately brought according to law, is one which will take priority in the end."
These contentions were advanced together with an argument that it was only if the s 123(1) proceedings were liable to be struck out, or vexatious, or brought for an improper purpose that security should be ordered against an impecunious natural person. This submission is unsound. It reintroduces by a back door the first of the construction arguments rejected above. The submission would permit a security order in relation to proceedings which ought to be dismissed either for failure to disclose or plead properly a cause of action, or as an abuse of process. In circumstances of that kind, there is no role for security orders to play, and to limit the role of security orders against impecunious natural persons to those circumstances is in reality to deny any operative jurisdiction to make them.
124 The second further submission of the claimant was that although the opponent had not behaved oppressively in bringing the application, the application should fail because the effect of an order for security would deprive her "of the right to have her action tried according to law". Some weight was placed on the fact that her right was a statutory one, but the argument would appear equally strong or weak whatever the source of her right. This too is another way of introducing the claimant's construction arguments by the back door. The argument in effect is that the discretion to make a security order against an impecunious natural person in the position of the claimant must be exercised in her favour if the order would prevent the proceedings from continuing. If that argument were sound, it could only be because s 69(3) was to be construed in that relatively narrow way. But the proposition that s 69(3) should be narrowed in any way was considered and rejected above.
125 The first of the principal points made by the opponent was that even if the claimant's case was regularly instituted, arguable and bona fide, she had failed to place before the primary judge any evidence indicating what her prospects of success were. This is correct. It is not, however, a factor which is decisive against her; it is simply that she cannot take advantage of any undemonstrated strength in her case which would raise it above the level of being arguable.
126 Secondly, the opponent submitted that there was no evidence that if security were ordered the litigation would come to an end. There is force in this contention. The claimant endeavoured to meet it by saying that it was common ground that she was "without any substantial means". The claimant then submitted: "It is accordingly clear that the effect of the order for security is to bring proceedings to an end." This does not follow. It was not directly proved that the security order would cause the proceedings to cease. The claimant declined to swear to any such proposition. There was evidence that the claimant either had engaged or was going to engage a solicitor, a barrister and an agricultural consultant. It would be contrary to daily experience of human nature in its sordid aspects if at least some of these persons were not to seek payment at least to some extent. It is, of course, possible that all these persons have agreed to act for nothing, or have agreed to act in return for a promise to be given the fruits of any favourable costs order if the claimant wins the case. But there is no evidence of either type of agreement. It may be inferred that some or all of the relevant professional persons expect to be paid, and that the claimant has arrangements in place to pay them. The only possible arrangements of that kind suggested by the evidence concern those suggested by her solicitation of donations from the 50 or 60 people present at a public meeting on 26 February 2001. The claimant gave no evidence revealing the outcome of that or any like appeal for funds. Distinct and cogent evidence of her failure to attract any financial support from others might well have demonstrated that in truth a security order will stop the proceedings; but there is no evidence of that type.
127 But even if the security order would cause the proceedings to cease, at least with the claimant as applicant, it is not impossible that a person capable of providing security could be substituted as applicant, or at least could have instituted similar proceedings within the relevant time. The fact that the claimant's claim might not proceed does not alter the fact that many other people could have instituted similar litigation of a kind not capable of being stopped by a security order. Further, if it is true that because of the claimant's financial position, she would probably not be able to provide the security or have the stay lifted, that indicates another relevant factor pointing against her: her inability to pay the opponent's costs if the proceedings failed and the Land and Environment Court made a costs order against her, and the consequential impact upon the opponent and those behind it if its application for security fails. That depends partly on its and their financial circumstances. The claimant accepted, initially, that she "couldn't say that the financial circumstances of the respondent are utterly irrelevant to the exercise of the discretion", and, a little later, that it was a relevant and important factor to weigh. Indeed the claimant accepted in argument that the opponent "does not seem itself to be wealthy". In turn the significance of that factor depends on the way the case is conducted. The claimant proposes to conduct proceedings which her counsel at the hearing of the appeal estimated could take three days using the services of a solicitor, a barrister and an agricultural consultant. She must have contemplated that the opponent would be likely to respond with equivalent forces. In any event it would be reasonable for it to do so. Proceedings so conducted suggest that at least the $12,500 which the primary judge ordered as security will be recoverable by the opponent against the claimant if a costs order is made against her.
128 Apart from the claimant's concession about the opponent's lack of wealth, the following material appears in the evidence. It is alleged by the claimant and admitted by the opponent that it is a corporation. Mr GWD Leviny's affidavit said that the opponent applied to the Maclean Shire Council for approval of an application to erect a rural worker's dwelling on the relevant land. He said he owned the land (a fact admitted by the legal representative for the opponent). He said that he is a farmer resident on the relevant land (a fact confirmed by his evidence that during the litigation he and his wife would have to fly or drive to Sydney). He said that he and his wife had indemnified the opponent in relation to its legal costs. He was described by the legal representative for the opponent as "the true respondent in these proceedings", capable of making admissions binding the respondent. Paragraphs 12, 15, 16, 17 and 18 of the Amended Points of Claim indicate scepticism on the claimant's part about the viability of the relevant land as a farm and it is common ground that that point is arguable.
129 In the related but somewhat different context of an application for security for the costs of an appeal, Priestley JA took into account the fact that if a large public company which was respondent to the appeal and applicant for security failed to obtain an order for security for costs in the amount of $15,000, that failure was not of great importance to it. He said this in the course of discussing a factor seen by him as relevant, namely, "the possible effects on the parties of the making or refusal of an order for security". His reasoning appears in Brown v Environment Protection Authority (NSWCA, unreported, 1 April 1993, Priestley JA, pages 4-5), a case considered by the parties in the course of argument. It follows that to obtain an order for security, or to fail to obtain it, might be of considerable significance to an applicant of limited wealth. An assessment of "possible effects" which are to take place, if at all, in the future, does not call for a demonstration that it is more likely than not that this will happen. Non-negligible possibilities must be looked for. It may be inferred that there is a real possibility that the "true respondent" in these proceedings, as the claimant's legal representative before the primary judge called him, is of limited wealth. He is a farmer, not of the Pitt Street variety. In particular, the claimant contends, and says the contention is not only arguable but has reasonable prospects of success, that the farm "would not be sufficient to maintain an average family in average seasons and circumstances". Indeed the claimant contends that no Council acting reasonably could have reached the contrary conclusion. The making of those allegations by the claimant's solicitor, and the contention advanced by counsel on behalf of the claimant to this Court that those allegations have reasonable prospects of success, constitute admissions made with the authority of the claimant: Evidence Act 1995 (NSW) s 87(1)(a)-(b). They are relevant: s 55(1). The admissions are that there is a real possibility that the farm is of questionable viability and hence a real possibility that its owner is of only limited wealth. There are very few farmers in this country of a non-Pitt Street kind who are natural persons to whom the loss of $12,500 would not be a serious matter. If the claimant loses the case and is ordered to pay the opponent's costs, and no security order has been made, the "true respondent" will have lost at least $12,500. To use Priestley JA's language, that demonstrates that if the order is not made one "possible effect" will be that there is a serious impact on the "true respondent". Since there is a real possibility that the "true respondent" is of only limited wealth, the "possible effect" on him of losing $12,500 is serious.
130 In the course of the argument various matters were raised as being potentially relevant to the discretion, but in the end it was common ground that they were either intrinsically irrelevant or insufficiently evidenced. One of these was the claimant's failure to object to the Development Application before the Council; another was the occurrence of earlier litigation between the parties. Further, though the controversy before this Court rightly stressed the wide standing afforded by s 123(1), despite some wavering, beyond that neither side placed significant emphasis on the issue of whether or not the litigation was "public interest" litigation. This was no doubt because of the imprecision and difficulty associated with that expression: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [30]- [31] and [71]-[97].
131 There is one factor relevant to security orders against plaintiffs making s 123(1) applications to which no attention was directed in argument, but which might be quite significant in other cases. The position of an impecunious plaintiff who lives next door to an illegal development which is injurious to the comfort and safety of that plaintiff is radically different from that of a plaintiff who lives hundreds of kilometres away and has no more than a desire that the law be enforced and that developments of that kind, whatever they are, cease. It might be highly relevant that an order that the first type of plaintiff provide security would frustrate the proceedings, but of very little relevance that such an order against the second type of plaintiff would. It would be relevant for the first type of plaintiff because the circumstances would correspond closely to those in which the general law rule about impecunious natural persons operated justly. Here the claimant is in neither category. She lives more than six kilometres from the proposed development. She told the public meeting held on 26 February 2001 that she had started the proceedings "to prevent the urbanisation of the Clarence River from Palmers Island to Yamba". Since neither party advanced any particular submission about the geographical relationship between her residence and the development, it may be taken that it is not a factor pointing decisively in either direction.
132 In summary, the factors against a security order are that the claimant's case is a case which is arguable, regular on its face, bona fide, properly instituted and brought by a person resident within the jurisdiction. The contentions that there were other factors against the order, particularly that it would stultify the proceedings and that the proceedings had reasonable prospects of success, were rejected above. The factors pointing in favour of a security order are that the claimant claims to be impecunious; that she has not shown that the order would stultify the proceedings; that the sum ordered by the primary judge is relatively low; that even though the sum is low, if the order were not made it could materially damage the "true respondent"; that the application was made promptly; and that it was not oppressive. The factors favouring the order outweigh those against it. That position would still hold even if it were assumed that the claimant's case is not merely arguable, but has reasonable prospects of success.
Orders
133 The following orders are proposed.
1. The claimant's application for leave to appeal is granted.
2. The claimant is to file a Notice of Appeal in the form of the draft appearing in the papers within seven days.
3. The appeal is dismissed.
4. The claimant is ordered to pay the opponent's costs of the leave application and of the appeal.
134 YOUNG CJ in Eq: I agree with the reasons of Heydon JA and the orders he proposes, but wish to add a few comments of my own.
The supposition that one does not order security for costs against an individual on grounds of poverty.
135 As to what Heydon JA has termed the first two arguments on construction, I analysed the history of the so called rule that poverty is no bar to a litigant in Morris v Hanley [2000] NSWLR 957. It is unnecessary to repeat fully what I said there to which I adhere. I noted that the poverty doctrine came into the law because these types of cases originally occurred when a pauper sued and the court was asked for de-pauperisation; see eg Wagner v Mears [1829] EngR 646; (1829) 3 Sim 127; 57 ER 947. In such case, the pauper prima facie had the right to sue in forma pauperis, but if the process was vexatious, leave to sue as a pauper would be withdrawn.
136 As I there noted, the underlying principle is that security will be ordered in cases where not to do so would allow proceedings which were vexatious or oppressive: McHenry v Lewis (1883) 22 Ch D 397, 408. The so-called rule about poverty being no bar is merely one of the factors the court takes into account when making its final assessment as to whether the proceedings, without security for costs, would be an abuse of the court's process.
137 Although my decision was reversed in the Court of Appeal, see Morris v Hanley [2001] NSWCA 374, this was because the court considered that I had given insufficient attention to the factor of delay: the general principles I stated were in no way affected on appeal.
138 That analysis sits well with the reasons of Heydon JA in the instant case. I note this matter because, whilst I agree with his Honour's construction of s 69 of the Land and Environment Court Act, 1979, I do not wish to be thought, in agreeing with the assumption Heydon JA makes for the purposes of the instant case in [101] to have departed from what I have said previously on this subject.
Section 123(1) of the Environmental Planning and Assessment Act, 1979
139 This sub-section provides that "Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach." In Rowley v NSW Leather and Trading Co Pty Ltd (1980) 46 LGRA 250, 256, Cripps J said that the clear words of the sub-section was to remove many of the previously established limitations on citizens to enforce a public right so far as breaches of the Act were concerned. He made that determination ruling against a submission (actually, by myself) that the court still needed to apply the requirements of Boyce v Paddington BC [1903] 1 Ch 109, 114.
140 The Court of Appeal in Sydney City Council v Building Owners Association of Australia (1985) 2 NSWLR 383, 387 took precisely the same view as did the Queensland Court of Appeal in NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706; 75 LGRA 64.
141 The flavour of some of the appellant's oral argument was to the effect that s 123(1) gives all people or alternatively all residents of this State some sort of untrammelled special statutory right to commence litigation on environmental matters in the Land and Environment Court.
142 Whilst the section is in wide terms, it must be remembered that its prime purpose was not so much to open the floodgates, but rather to remove what had become increasing technical restrictions on standing imposed by Boyce's case. That such proceedings were to be reined in is clear from s 124 where the court is given wide discretion whether or not to make orders.
143 The authorities (eg Rowley 261; NRMCA Qd R at 711-2; LGRA 68) make it clear that the court will exercise its discretion to refuse relief far more often in a case brought by a person other than the Attorney-General.
144 In the NRMCA case at 712 (68) the court said, "The appellant in no sense represents the community and the court has not been told what is its interest in the present proceedings." However, the right which the appellant asserts is a public right which is to be policed by the court for the benefit of the public.
145 The discretion as to whether the court will make an order is influenced by the factors noted by the Queensland Court of Appeal in the NRMCA case at 712 (69) (which is a summary of what Kirby P said in this court in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67, 83-4), "They include practical inconvenience attendant upon the grant of an injunction, whether or not there were complaints in the neighbourhood, whether persons who complained were residents of the area...".
146 The combined effect of ss 123 and 124 are that whilst the court accepts process from any citizen, the court is always mindful of the oppression that may occur if the real reason for the complaint is a collateral one such as a competitor's business is affected rather than the amenity of the neighbourhood and will exercise its discretion accordingly. This suggests that it is also incumbent on the court to scrutinize closely such actions at an earlier stage than final disposition, by orders for security for costs and otherwise to see that there is no abuse of process.
Concluding Remarks
147 The solution to the problem reached by Cowdroy J and by Heydon JA avoids the Land and Environment Court being involved in the same procedural farce as Dickens and others criticised in the early 19th century. I refer, of course, to the situation where penniless people hired themselves out as litigants by sitting on the steps of the Court with pieces of straw. The legislature never intended that these men of straw banished by the procedural reforms of 1832 should be reincarnated as the penniless pensioner of 2002.
LAST UPDATED: 12/04/2002
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