COLIN MAYBURY, MARCIA MAYBURY and KURRI/WESTON CONCERNED CITIZENS ACTION GROUP INC v. WESTON ALUMINIUM (PRODUCERS) PTY LIMITED [1998] NSWLEC 208 (29 June 1998)

Land and Environment Court of New South Wales

Record of Hearing

Judge Talbot J

Number 40168 of 1997

Parties Applicants Colin Maybury

Marcia Maybury

Kurri/Weston Concerned Citizens'

Action Group Inc

Respondent Weston Aluminium (Producers) Pty Limited

Key Issues costs

Hearing Dates 29 June 1998

Judgment Ex tempore

Judgment Date 29 June 1998

Appearances Applicants Mr C Maybury (In Person/Agent)

Respondent Mr J E Robson (Barrister)

Solicitors Applicant n/a

Respondent Parry Carroll Kanjian Solicitors

No of pages 3

Summary of orders

* Each party pay their own costs

* Applicants' Notice of Motion dismissed

* Respondent's Notice of Motion dismissed

IN THE LAND AND							MATTER No. 40168 of 1997

ENVIRONMENT COURT			CORAM: Talbot J

OF NEW SOUTH WALES			DECISION DATE: 29 June 1998

COLIN MAYBURY, MARCIA MAYBURY and KURRI/WESTON CONCERNED CITIZENS ACTION GROUP INC

Applicants

v

WESTON ALUMINIUM (PRODUCERS) PTY LIMITED

(formerly Alumino Australia Pty Ltd)

Respondent

REASONS FOR JUDGMENT

1. HIS HONOUR: These proceedings were commenced some time during the month of September 1997 following a judgment delivered by me in proceedings 10397 of 1995, on 30 August 1996, following a final hearing on 27 August.

2. The applicants in the proceedings sought to deal with a number of issues which were fully canvassed in my judgment delivered on 17 February 1998. Ultimately the applicants were unsuccessful in the proceedings and the application was dismissed with the effect that the class 1 determination made by this Court in August 1996 remains undisturbed.

3. These class 4 proceedings were set down for hearing on 21 October, when no appearance was entered by the respondent. Subsequently, the respondent became aware of the fact that the proceedings were on foot and thereupon filed a notice of motion seeking primary relief to strike out the application on the ground that it was frivolous, vexatious and an abuse of process.

4. The issue of whether or not the proceedings should be struck out was argued before the Chief Judge on 21 October. Following argument her Honour declined to make the order. She did, however, make an order in the alternative which followed as a consequence of the failure to have the proceedings struck out.

5. Even though her Honour appears in her reasons to have effectively deferred any final determination as to whether or not the respondent was entitled to succeed, she nevertheless dismissed the application in the form before her on that day.

6. True it is that the applicants were unsuccessful in having the matter, that is the substantial matter, heard on that day. However I am satisfied the matter was listed as an ex parte hearing. There is no evidence to suggest that occurred as a consequence of any default on the part of the applicants. Some explanation was furnished as to why it was that the respondent had not previously appeared in the proceedings. There was obvious confusion at that time in relation to the conduct of the affairs of the respondent as a consequence of changing corporate structure, the details of which I do not need to analyse again.

7. True it is also that the second order sought by the respondent in the notice of motion was effectively made by her Honour. I accept that it was merely, as I said a moment ago, as a consequence of the failure by the respondent in respect of its primary application for relief in order number 1.

8. Having regard to the whole of the circumstances as they were at that time before her Honour, this is an appropriate case where the parties should accept responsibility for their own costs. Accordingly I propose to make an order that each party pay their own costs in respect of the notice of motion heard before the Chief Judge on 21 October 1997.

9. Further, having regard to that finding I apply the same reasoning to the situation as it is today in relation to this notice of motion, and determine that it is appropriate also that the parties should bear their own costs in regard to today's hearing which arose to some extent as a consequence of the parties seeking some clarification. I note that the applicants, at the commencement of proceedings this morning, suggested that the matter be adjourned. It was adjourned for a short time in order to allow some further discussions to take place.

10. Accordingly, the notice of motion by the respondent is dismissed. The notice of motion by the applicants is dismissed. I order that each party pay their own costs in respect of the notice of motion before the Chief Judge on 21 October 1997 and of today.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

Associate