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Home >  Blog >  The Court has a discretion to grant and order for costs when an application is brought without a reasonable prospect of success

The Court has a discretion to grant and order for costs when an application is brought without a reasonable prospect of success

Posted on 31 May 2017

Source: Sinead Garland, Nadia Czachor and Ian Wright, CBP

In brief


The case of Swan v Santos GLNG Pty Ltd & Ors (No 2) [2017] QPEC 17 concerned an application for an order for costs made by Santos GLNG Pty Ltd in respect of a failed application brought by the owner of the land in the Planning and Environment Court alleging Santos had committed offences under the Environmental Protection Act 1994.


The owner made an application to the Court asserting that Santos had breached the conditions of relevant environment authorities when it constructed a pipeline over the owner's land and, as a result, Santos committed criminal offences under section 430 and/or section 431 of the Environmental Protection Act 1994. The owner's application was dismissed on the basis that the owner had failed to discharge the onus placed on him to satisfy the Court that Santos breached the conditions under the Environmental Protection Act 1994. Following the owner's unsuccessful application, Santos sought an order for costs of and incidental to the proceedings against the owner. In its costs submissions Santos relied on section 457(2)(a),(c), (d), (i) and (l) of the Environmental Protection Act 1994.


The Court found that the owner never had any reasonable prospect of succeeding in the proceeding and ordered that the owner pay Santos, as well as Papl Downstream Pty Ltd and Total GLNG Australia, their costs of and incidental to the proceedings to be assessed on the standard basis, if not agreed.


Firstly, the Court considered the relative success of the parties when making orders for costs


The owner's application asserting that Santos had committed criminal offences under the Environmental Protection Act 1994 was unsuccessful as the owner failed to discharge the onus to satisfy the Court that Santos had breached the conditions of the environment authorities. In short, the owner's application failed and the owner had enjoyed no success in the proceeding.


Secondly, the Court considered whether the owner had commenced a proceeding for an improper purpose


There was no direct suggestion by Santos that the owner had commenced proceedings for an improper purpose and therefore this factor did not bear upon the exercise of the Court's discretion.

Finally, the Court considered whether the owner commenced the proceeding without a reasonable prospect of success

The Count found that despite the owner being granted numerous opportunities to bring evidence to support his case, the owner failed to properly particularise his case under section 505(5) of the Environmental Protection Act 1994. In addition, the owner failed to properly consider the conditions of the environment authorities before bringing his case. The Court found that the owner did not have any reasonable prospect of succeeding in the proceeding.

For these reasons the Court exercised its discretion in favour of Santos and rejected the owner's submission that there should be no order as to costs. The owner was ordered to pay Santos, as well as Papl Downstream Pty Ltd and Total GLNG Australia, their costs of and incidental to the proceedings to be assessed on the standard basis, if not agreed.

 

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