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Delta Electricity v Blue Mountains Conservation Society Inc.

Country/Territory
Australia
Type of court
Others
Date
Oct 18, 2010
Source
UNEP, InforMEA
Court name
Court of Appeal of New South Wales
Judge
Beazley
Basten
Macfarlan.
Reference number
[2010] NSWCA 263
Language
English
Subject
Water, Legal questions
Keyword
Emission standards Water quality standards Environmental standards Freshwater quality/freshwater pollution Standards Effluent waste standards Noise standards Access-to-justice
Abstract
Blue Mountains Conservation Society ('BMCS') commenced proceedings in the Land and Environment Court seeking a declaration that Delta Electricity ('Delta') had polluted the waters of the Cox’s River in New South Wales, in contravention of the Protection of the Environment Operations Act 1997. BMCS contended that the proceedings were brought in the public interest and filed a notice of motion seeking an order pursuant to Uniform Civil Procedure Rules 2005, r 42.4 limiting the maximum costs recoverable by the parties to the proceedings to $10,000, or an amount specified by the court. BMCS contended that it was only able to proceed with the litigation if an order limiting costs was made. The application was opposed by the Delta. On 9 September 2009 the Land and Environment Court ordered that the maximum costs that may be recovered by a party to the proceedings was the sum of $20,000. The appellant appealed against her Honour’s interlocutory order, principally contending that: (i) her Honour erred in making an order to protect the respondent’s assets to the exclusion of other relevant considerations: those other relevant considerations included the usual rule that costs follow the event and are compensatory in nature, and that the underlying purpose of r 42.4 is to ensure the proportionality of costs to the complexity of proceedings; and (ii) it was not reasonably possible to categorise proceedings as public interest litigation at the outset. The appeal was dismissed by majority with no error found in the approach adopted by her Honour Justice Pain of the Land and Environment Court. Delta was ordered to pay the costs of BMCS costs.
Full text
COU-156694.pdf