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CITATION: St Helens Area Landcare and Coastcare Group Inc v Break O’Day
Council [2005] TASSC 46

PARTIES: ST HELENS AREA LAND CARE AND COASTCARE
GROUP INC
v
BREAK O’DAY COUNCIL
SMARTGROWTH INTEGRATED ARCHITECTURE
AND URBAN DESIGN
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 14/2005
DELIVERED ON: 31 May 2005
DELIVERED AT: Hobart
HEARING DATE: 24 May 2005
JUDGMENT OF: Blow J

CATCHWORDS:
Procedure – Costs – Security for costs – Poverty – La ck of means – Impecunious organisation – Appeal from
statutory tribunal.
Supreme Court Rules 2000 (Tas), r828.
Friends of Hinchinbrook Society Inc v Minister for Environment (1996) 69 FCR 1, referred to.
Aust Dig Procedure [668]

REPRESENTATION:

Counsel:
Appellant: G L Sealy
Second Respondent,
Freshwater Creek Pty Ltd
and Numero Ace Pty Ltd: D R Armstrong
Solicitors:
Appellant: FitzGerald & Browne
Second Respondent,
Freshwater Creek Pty Ltd
and Numero Ace Pty Ltd: Don Armstrong

Judgment Number: [2005] TASSC 46
Number of paragraphs: 34

Serial No
46/2005
File No
LCA
14/2005

St HELENS AREA LANDCARE AND COASTCARE GROUP INC
v BREAK O’DAY COUNCIL and SMARTGROWTH INTEGRATED
ARCHITECTURE AND URBAN DESIGN

REASONS FOR JUDGMENT BLOW J
31 May 2005

1 This is an application for an incorporat ed association to give security for costs in
respect of an appeal by it from a decision of the Resource Management and Planning
Appeal Tribunal (“the Tribunal”).
2 The proceedings concern a site at Scamander comprising about 52 hectares. The
land in question is bounded by the Tasman Hi ghway to the west and by a beach to the
east. The second respondent, which is apparen tly a firm of architects and urban design
consultants, applied to the first responde nt (“the Council”) for a planning permit on
behalf of two clients, Freshwater Creek Pt y Ltd and Numero Ace Pty Ltd. The permit
was sought for (a) a 101 lot residential subdivisi on in two parts, those parts being referred
to as “the ecohamlet” and “Dune Street”; (b) a caravan park; (c) a camping ground; (d) a
number of “eco-retreat cabins”; (e) a number of “beach retreat cabins”; (f) a cabin park;
(g) a reception office; and (h) a sanctuary, co mprising the balance of the land, which was
apparently intended to remain undeveloped. A number of persons and organisations
made representations opposing the developm ent, but the Council granted a permit,
subject to a large number of conditions. There were four appeals from the Council’s
decision to the Tribunal: one by the present appellant, one by the Tasmanian
Conservation Trust, and two by individuals. Those appeals were partly successful and
partly unsuccessful. The Tribunal varied the permit conditions so as not to permit the
development of the eco-retreat cabins, the b each retreat cabins, the reception office, or
the Dune Street subdivision. However, the permit as varied permits the development of
the “ecohamlet”, which includes nearly a ll of the 101 proposed lots, as well as the
caravan park, the camping ground, and the cabin park. The proposed sites of the Dune
Street subdivision, the eco-retreat cabins, the beach retreat cabins, and the reception
office are to become parts of the sanctuary.
3 The appellant has appealed from that decision pursuant to the Resource
Management and Planning Appeal Tribunal Act 1993 (“the RMPAT Act”), s25. No
other person or organisation has appealed. The second respondent and its two clients
have applied for an order that the appellant give security for their costs in the sum of

$15,000. I will refer to the three applicants as “the developers”. They contend that the
appellant is impecunious; that it is litigating fo r the benefit of its members and not for its
own benefit; that its members do not have prope rties likely to be affected by the proposed
developments and have only inte llectual and emotional interests at stake; that the appeal
is unlikely to succeed; and that, principally because of those circumstances, security for
costs ought to be provided by the appellant.
4 This Court has powers to make orders for security for costs that come from a
number of sources, including its inherent jurisdiction, the Supreme Court Rules 2000, and
the Corporations Act 2001 (Cth), s1335(1). However, s1335(1) does not apply to
incorporated associations: Associations Incorporation Act 1964, s3. I have no doubt that
the Court’s inherent jurisdiction allows it to entertain the present application, but I think
the application also falls within the scope of the Supreme Court Rules, r828(1), which
relevantly provides as follows:
“828 (1) The Court or a judge, on the application of a party to
proceedings, may order an opposite party to give security for the costs of
the party applying for security and that the proceedings against the party
applying for security be stayed subject to the provision of security if the
opposite party from whom security is sought is a plaintiff, applicant,
defendant pursuing a counterclaim or respondent pursuing a cross
application and if –
(a) …; or
(b) the opposite party is a corporation; or
(c) the opposite party, not being a party who sues in a representative capacity, sues only for the benefit of some
other person and there is reason to believe that the opposite
party does not have sufficient assets in Tasmania to pay the
costs of the party ap plying for security…”.
5 The appellant is a “plaintiff” for the purposes of r828(1), in my view, because
that word is defined in the Supreme Court Civil Procedure Act 1932, s3, as follows:
“‘plaintiff’ includes every person aski ng for relief (otherwise than by way
of counter-claim as a defendant) agains t any other person by any form of
proceeding, whether the same be taken by action, petition, motion,
summons, rule, or order to show cause, or otherwise”.
That definition applies to the Supreme Court Rules because of the Acts Interpretation Act
1931, s5(2).
6 The discretion to order security for costs is not fettered by any rule or other
legislative provision. The factors that may be relevant to the determination of an
application for security for costs have been discussed and listed in a number of cases,
including K P Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197 –

198. It has been said that “the circumstances in which the discretion should be exercised
in favour of making an order cannot be stated exhaustively”: Spiel v Commodity Brokers
Australia Pty Ltd (1983) 35 SASR 294 at 300. The factors that I consider relevant for
present purposes, and my comments in relation to each of them, are as follows.
Impecuniosity
7 The appellant’s assets comprise about $1,450 and hand tools worth about $300.
If it is ordered to pay the costs of the appeal following a hearing, it will be unable to do
so. There is no suggestion that the appe llant’s impecuniosity has been caused or
contributed to by the developers in any way.
8 Counsel for the developers, Mr Armstrong, rightly conceded that an order for
security for costs should not be granted on the basis of impecuniosity alone.
Promptness
9 This application has been made promptly , only nine days after the filing of the
notice of appeal.
Whether the applicant is litigating for the benefit of others
10 I do not have evidence of the objects of the appellant as formally stated pursuant
to the Associations Incorporation Act, s7(2)(a)(ii), but I have evidence of its history and
activities. It was set up in 1992. It obtaine d a grant for landcare activities in 1993. In
1995 it obtained a grant to erect fencing to protect an area of coastal heathland. In 1998
it received a grant for the rehabilitation and reloca tion of a car park near a beach. It has
made representations to councils in relation to advertised permit applications, on average
about once per year, when of the view that proposed developments will have significant
environmental impact.
11 In Friends of Hinchinbrook Society Inc v Minister for Environment (1996) 69
FCR 1, which involved an application for an incorporated association to provide security
for costs in relation to an application by it under the Administrative Decisions (Judicial
Review) Act 1977 (Cth), Branson J said the following at 21 – 22:
“The applicant is an incorporated association of persons concerned with
the environment. In one sense, ev ery association is a front for its
members: they stand behind it and may be assumed themselves to
support the objectives of the associat ion and, generally speaking, the
association’s actions in intended advancement of those objectives. There
is, however, in my view, a very real difference between the relationship
of a member of a non-profit association formed to advance a public
interest to the association of which he or she is a member, and the
relationship of a shareholder to the company in which he or she holds
shares. The benefit which a shareholder might expect to obtain from
litigation conducted by a company will or dinarily be, whether directly or

indirectly, financial. Members of a non-profit association will not
ordinarily benefit financially from litigation initiated by the association.
The benefit which they might obtain from such litigation is likely to be
constituted by intellectual or emotional satisfaction.”
12 In Byron Shire Businesses for the Fu ture Inc v Byron Shire Council (1994) 83
LGERA 59, an application was made for an incorporated association to provide security
for costs in relation to an application to have declared void a development consent with
respect to the redevelopment of an existing to urist facility, which was intended to become
a Club Med resort. An applicable rule of c ourt empowered an order for security for costs
to be made where it appeared that a plainti ff was suing “not for his own benefit, but for
the benefit of some other person and there is reason to believe that the plaintiff will be
unable to pay the costs of the defendant if ordered to do so”. At 61 – 62, Pearlman J said:
“The mere fact of membership of an incorporated association does not
place the members in the category of ‘some other person’ for the purposes
of r 2(1)(b): see Citizens Airport Environment Association Inc v
Maritime Services Board (Land and Environment Court of New South
Wales, Bignold J, 9 October 1992, unreported) at 16. Corporations and
incorporated associations both have members; and acts done by
corporations and incorporated associations directly or indirectly benefit
those members. Rule 2(1)(b) could not possibly have been intended to
operate to require security for costs in all cases where corporations or
incorporated associations were plaintiffs or applicants.
…
Simply because the members of the a pplicant may derive a benefit from
the proceedings does not establish that the applicant itself will not derive
a benefit. I am satisfied that in this case the applicant itself will benefit
from the proceedings. It may not gain a financial benefit from a
successful outcome of the proceedings, but it will achieve at least the
furtherance of some of its objectives.”
13 In my view the appellant is not litigating so lely for the benefit of others. It is an
association with objectives concerned with the protection and preservation of the
environment. Success in this appeal would seem to be likely to further those objectives.
14 However I consider it to be a relevant factor that there is no evidence that any
members or supporters of the appellant ha ve shown any willingness to provide security
for the developer’s costs.

Effect on the right to litigate
15 There is no evidence that this applicati on has been made merely to attempt to
deny the appellant its right to litigate. When there is some prospect of an application for
security for costs being successful, it makes good business sense for such an application
to be made in order to avoid the risk of obt aining a worthless costs order. There is no
suggestion that this is an inten tionally oppressive application.
16 The evidence does not establish that the making of an order for security for costs
will necessarily bring the appeal to an end. However I think that result is highly likely,
since the sum specified in the application is $15,000, there is no suggestion that that sum
is excessive, and none of the appellant’s me mbers or supporters appears to have any
financial interest in the outcome of the proceedings.
Proportionality
17 It is appropriate to compare the amount of the developer’s estimated costs and the
overall cost of their development. As Pearlman J said in Byron Shire Businesses at 64:
“This approach balances the risk that an order for security for costs may
put a halt to the litigation against th e risk of the possible inability to
recover an amount of costs …”.
The development as originally proposed included a 101 lot residential subdivision, a
caravan park, 78 cabins, an office, and associated works. The inability to recover costs of
$15,000 or thereabouts would be of the most marginal significance, having regard to the
overall cost of the development.
Public interest litigation
18 The appellant contends that this appeal is in the nature of public interest
litigation, and that one aim of the regime of land use and planning legislation in this State
is to encourage public participa tion in the planning process.
19 The RMPAT Act, Sch1, sets out the “Objectives of the Resource Management
and Planning System of Tasmania”. The same list of objectives appears in other relevant
legislation, eg the Land Use Planning and Approvals Act 1993 (“the LUPA Act”), Sch1.
Schedule 1 to each of those Acts includes the following:
“1 The objectives of the resource management and planning system of
Tasmania are –
(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and
genetic diversity; and
(b) …;

(c) to encourage public involvement in resource management and
planning; and
(d) …;
(e) to promote the sharing of responsibility for resource management and planning betw een the different spheres of
Government, the community and industry in the State.
2 In clause 1(a), ‘sustainable development’ means managing the use,
development and protection of natura l and physical resources in a way,
or at a rate, which enables people and communities to provide for their
social, economic and cultural well-be ing and for their health and safety
while –
(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations;
and
(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(c) avoiding, remedying or mitig ating any adverse effects of
activities on the environment.”
20 Consistently with the objective of encouraging public involvement in resource
management and planning, whenever an appli cation is made for a permit in respect of a
use or development, the LUPA Act, s57(5), permits any person to make representations
relating to the application, and s51(2)(c) requires the planning authority – usually a
council – to take into consideration the matters set out in all such representations. Under
the LUPA Act, s61(5), any person who has made a representation under s57(5) may
appeal to the Tribunal against the granting of a permit. Public participation is also
encouraged by the RMPAT Act, s28, which in substance provides that, prima facie , each
party to an appeal to the Tribunal is to pay its own costs.
21 The objectives in the RMPAT Act, Sch1, suggest that there is a role in the
resource management and planning system of Tasmania for community based
organisations concerned with the protection of the environment. Because of cl 1(e)
thereof, the community should share responsibility for resource management and
planning. Because of cls 1(a) and 2(c), one of the objectives of the system is to manage
the protection of natural and physical res ources while avoiding any adverse effects of
activities on the environment.
22 In Friends of Hinchinbrook , when considering the application for security for
costs, Branson J took into account the provisions of the World Heritage Properties
Conservation Act 1983 (Cth) (“the Conservation Act”) and said the following:
“The above provisions, in my view, wh ilst concerned principally with the
issue of standing, disclose an inten tion that legitimate organisations and

associations concerned with world heritage properties should be able to
agitate before the Court issues arising under ss9 and 10 of the
Conservation Act. Organisations and associations of this kind will not
infrequently have limited financia l means. When considering an
application for security for costs in a proceeding involving the
Conservation Act, it is legitimate, in my view, for the Court to have
regard to the apparent intention of Pa rliament that such organisations and
associations should be able to initiate such litigation.”
23 The relevant Tasmanian legislation does not refer specifically to organisations.
However the taking of responsibility for r esource management and planning by the
community, in accordance with the intention of Parliament, is facilitated by the formation
of community organisations concerned with th e protection of the environment. For such
organisations to serve their purpose, it will be necessary for them to make representations
to councils and to initiate and ta ke part in appeals to the Tribunal. Since the Tribunal is
not infallible, there is nothing in herently inappropriate in such an organisation, even an
impecunious one, pursuing its objectives by a ppealing from a decision of the Tribunal.
Significance of Tribunal hearing
24 Friends of Hinchinbrook was concerned with a challenge to a decision of a
Minister, whereas this appeal is concerned with a challenge to a decision of a quasi-
judicial tribunal, and a well credentialed one at that. When an impecunious appellant
appeals from a decision of one court to a higher court, the fact that the appellant has been
unsuccessful before the court of first instance will often be a powerful factor weighing in
favour of the ordering of security. See, for example, Smail v Burton [1975] VR 776. I
think it logically follows that the making of an adverse determination by a quasi-judicial
tribunal must be relevant, but I think it mu st carry less weight than the making of an
adverse determination by a court. The fact that an appellant has had an opportunity to
ventilate arguments of law before a tribunal must, to some degree, weigh in favour of
making an order for security. However that point will be of less significance when an
appellant contends that a tribunal has fallen into error on some point that was not the
subject of argument before it.
The appellant’s bona fides
25 There is no evidence to suggest a lack of good faith on the part of the appellant.
Strength of the grounds of appeal
26 On any application for security for costs, the strength of the case of the
respondent to the application is a relevant c onsideration. It may even be a decisive
consideration. See, for example, Environmental Defenders Office (Tas) Inc v Chipman
[2003] TASSC 72. Counsel of course did not fully argue the grounds of appeal in this
case. The most that I can properly do is to make some preliminary assessment of their
strengths and weaknesses on the basis of limit ed submissions and limited consideration of
the materials before the Tribunal and the law.

27 There are three grounds of appeal. Ground 1 asserts in substance that the
amended permit granted by the Tribunal was substantially different from the permit that
the developers sought from the Council. A distinction has to be drawn between a
modified version of the permit applied for, and a permit altogether different from that
applied for. That sort of distinction is well recognised: Legg v Inner London Education
Authority [1972] 3 All ER 177; Addicoat v Fox (No 2) [1979] VR 347 at 363; Bernard
Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442 at 446 – 447. If the
Tribunal concluded that the only appropriate pe rmit was not a modified version of that
applied for, but one altogether different from that applied for, it should have directed the
Council not to grant the permit, leaving it open for the developers to make a fresh
application. Ordinarily, an appeal in relati on to this sort of distinction would stand a
strong chance of failure on the basis that it re lates to a question of fact rather than a
question of law, and on the basis that the specialist qualifications of the members of the
Tribunal should be respected unless it can be shown that they acted upon wholly
irrelevant considerations or in some other respect erred in law: R v Resource Planning
and Development Commission; ex parte Aquatas Pty Ltd (1998) 100 LGERA 1 at 8; R v
Land Use Planning Review Panel; ex parte M F Cas Pty Ltd (1998) 103 LGERA 38 at
49; R v Resource Planning and Development Commission; ex parte Stevens (1999) 103
LGERA 181 at 186; R v Resource Planning and Development Commission; ex parte
Dorney (2003) 12 Tas SR 69 at 97, [2003] TASSC 69 at pars34 – 36.
28 However in this case the Tribunal dealt with the point in question in a somewhat
unusual way. At par49 of its decision, it said the following:
“Refusal of the proposal in respect of the eastern portion of the site and
allowing only the proposed development upon the western portion of the
site might be thought to be subs tantially different from what was
proposed, and therefore essentially a refusal. The Tribunal would
ordinarily have refused the whole pr oposal upon that basis. The Tribunal
was however invited by Counsel for the applicant, in the event that part
of the development was excluded, to nevertheless permit the remainder.
Against the event that the Tribunal’s conclusion falls within that
invitation, the Tribunal will allow t hose aspects which it has not stated
above that it excludes. If counsel’s invitation did not extend to so doing,
and the Tribunal was required to express a decision in those terms, the
Tribunal would refuse the total development.”
29 In my view the finding of fact reflected in the first two sentences of that
paragraph enables the appellant to argue that the development permitted by the Tribunal
was so substantially different from the de velopment for which a permit was sought from
the Council that the Tribunal did not grant a modified version of the permit applied for,
but granted a different permit a ltogether – one that had not been applied for, and had not
been the subject of public advertising or representations. If that were correct, the
appellant could further argue that no invita tion from counsel could make a difference to
that state of affairs, and that the Tribunal erred in law by granting a permit that had not

been applied for. In my view such an argument would have a significant chance of
success.
30 The second ground of appeal asserts that the Tribunal erred in law in failing to
consider the provisions of the State Coastal Policy as required by the State Policies and
Projects Act 1993, s15 and the LUPA Act, s63(2). The developers contend that the
Tribunal considered all the issues that the State Coastal Policy required it to consider, but
without always referring in its decision to the provisions of the policy. The appellant
contends that one provision in the policy, cl 2.4.3, required the Tribunal to determine the
validity or otherwise of relevant provisions in the applicable planning scheme. Clause
2.4.3 was apparently intended to impose a requirement upon the makers of planning
schemes. It reads as follows:
“2.4.3 Any urban and residential development in the coastal zone,
future and existing, will be id entified through designation of
areas in planning schemes consistent with the objectives,
principles and outcomes of this Policy.”
31 The appellant contends that the prop osed development included residential
development in the coastal zone; that the planning scheme designated areas in which
particular types of development were to be permitted, discretionary or prohibited; that
such provisions in the planning scheme were void if they did not satisfy the requirements
of cl 2.4.3; and that the Tribunal erred in not considering and determining whether any of
the relevant provisions of the planning scheme were void on that basis. I am simply not
in a position to evaluate the chances of such an argument su cceeding. I am not able to
say that it is likely to fail.
32 The third and final ground of appeal asserts that the Tribunal erred in law in
failing to have regard to cl 2.7.1 of the Br eak O’Day Planning Scheme 1996. That clause
requires the Council to refuse an application for use or development “that cannot
demonstrate compliance with any Scheme standard applicable to that use or
development”. I do not think it appropriate for me, in the present context, to undertake
the task of identifying every relevant standa rd in the planning scheme, and analysing the
Tribunal’s decision with a view to determining the chances of this ground succeeding,
particularly since counsel said little to me about this ground.
33 My conclusion is that ground 1 seems to have significant merit, and that grounds
2 and 3 cannot be said to have no merit.
Conclusion
It is true that the appellant is impec unious, that an order for costs is likely to
be of little use to the respondents if the a ppeal fails, and that other factors referred
to above weigh in favour of security be ing ordered. However, because an order
for security for costs is likely to bring th is litigation to an end, because there seems
to be significant merit in at least the firs t ground of appeal, because the likely costs

of resisting the appeal are small in comparison to the overall costs of the
development even after its scope has been reduced by the Tribunal, and because I
think participation in litiga tion by community environmenta l groups is consistent
with the intentions of Parliament in relation to the resource management and
planning system of Tasmania, I have decided to refuse the application