Fitzsimons Jeanette: Resource Management Amendment Bill (No 2) — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee 
Fitzsimons Jeanette: Resource Management Amendment Bill (No 2) — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee 
[Volume:608;Page:5532] 
JEANETTE FITZSIMONS (Co-Leader—Green) 
: 
 I want to pick up an issue raised by Nick Smith a few minutes ago and explain to the Committee the process that the Local Government and Environment Committee went through in introducing new section 284A in clause 80 of the No. 1 bill which has become clause 80 of this bill. When Simon Upton’s bill came before the select committee the committee had recently received a member’s bill in the name of Sandra Lee called the Resource Management (Costs) Amendment Bill. That bill sought to protect from outrageous impositions of costs those persons and groups who were genuinely bringing a case representing some matter of the public interest and who just happened to lose because one can never absolutely predict what the courts will do. 
As I have said in my previous speeches the Act relies on a contest of evidence and ideas between developers and members of the community in order to ascertain what complies with the Act and what does not. Because we had that bill before us the committee decided to call for submissions on both bills simultaneously. It decided that in the interests of good legislation whatever we might decide to do with the member’s bill we would do as part of the amendment bill so that we did not have another little bill sitting out to the side. After hearing submissions and advice the committee members felt that we could not give a blanket exemption to awards of costs to community groups because there must be some sanction for wasting the time of the court and the applicant. If the case has no merit there must be some sanction for failing to comply with directions of the court and there must be some incentive for people to prepare a case properly and observe the normal rules that go with running the process. That sanction is the ability of the court to award costs against any party to the court that misuses the process. 
However what submitters told us—those who had been through the experience of objecting to the Environment Court—was that their main worry was not the possibility that if they lost costs might be awarded against them. That was a risk they felt they could foresee and manage and have considerable influence over. They told us that the much bigger issue was that developers were using the ability to get security for costs awarded at the start of the process as a threat and as a way of preventing participation in the cases at all. 
They cited a number of cases where groups had never gone to court even though they had a good legal case because the developer had said: “Well we’ll seek security for costs.” The court has been known to award up to $30000 for security of costs at the start of a case and that is a huge disincentive for people getting involved in the court at all. It is true that the courts have not done that often it is true they have not done it lightly and it is true that they have not done it frivolously but the fact is that community groups do not necessarily know that. They do not have all the research facilities to find that out and they are frequently told by applicants that they will have to pay the money upfront if they want to take part. 
The fact is that the Environment Court did not always have that power. For the first few years of the operation of the Act they could not award security of costs. It happened only by accident in 1996 when an amendment to the Act gave the court the powers of a District Court; and what happens by accident can equally well be taken away. Environment Court proceedings are so often David and Goliath undertakings where the applicant is backed by millions of dollars. It is true that applicants also have millions of dollars to lose but they have all the resources. The community group has nothing but what it has raised through its cake stalls so it is appropriate that it be given the opportunity to obtain justice providing it abides by the rules. The committee therefore decided to take away the right of a court to award security for costs at the beginning but to leave in place at this stage the ability to award costs against groups in the hope that it would encourage them to run their cases as well as possible.