CATCHWORDS
SECURITY FOR COSTS - appeal in conservation litigation - limited time between motion for security for costs and hearing of appeal - whether public interest a relevant factor.
World Heritage Properties Conservation Act 1983 (Cth)
FRIENDS OF HINCHINBROOK SOCIETY INC v MINISTER FOR ENVIRONMENT & OTHERS
No NG 164 of 1997
Davies J.
14 April 1997
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 164 of 1997
)
GENERAL DIVISION )
BETWEEN: FRIENDS OF HINCHINBROOK SOCIETY INC
Applicant
AND: MINISTER FOR ENVIRONMENT & OTHERS
First Respondent
CARDWELL PROPERTIES PTY LTD
Second Respondent
THE STATE OF QUEENSLAND
Third Respondent
Coram: Davies J.
Date: 14 April 1997
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The applications for security for costs be refused.
2. The costs of the motion be the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 164 of 1997
)
GENERAL DIVISION )
BETWEEN: FRIENDS OF HINCHINBROOK SOCIETY INC
Applicant
AND: MINISTER FOR ENVIRONMENT
First Respondent
CARDWELL PROPERTIES PTY LTD
Second Respondent
THE STATE OF QUEENSLAND
Third Respondent
Coram: Davies J.
Date: 14 April 1997
Place: Sydney
REASONS FOR JUDGMENT
In this matter there are two applications for security of costs. In my view, at this point of time, having regard to the limited time available between today and 27 and 28 May when the appeal is set down for hearing, it is appropriate to refuse the order sought for security for costs.
Mr Hilton has very properly mentioned a number of matters of principle and he has said that there is no reason why public interest bodies should not provide security for costs or why costs should not be taken into account when litigation is launched. Litigation will involve all parties on the record in costs. He has pointed out that people who initiate proceedings should be encouraged at least to recognise that costs will be incurred in the proceedings and they should be prepared to make arrangements for security.
I do not reject that approach in general but the particular facts of a case always have to be taken into account. It is a fact that conservation litigation is often commenced somewhat urgently before attention can be given to dealing with all the financial aspects of it. It is also the position that appeals in conservation cases, when they are brought, ought to be dealt with expeditiously. The parties are in agreement about that and this is no time for delaying the matter by requiring the appellant to spend a month or two in seeking to raise funds for security for costs. It is the urgency of the matter that sometimes makes it inevitable that no order for security will be made when otherwise it may have been proper to order security.
So I do not deal with the issues that Mr Hilton raised by way of principle simply because it seems to me that the time available between now and the hearing does not make that a practical proposition.
I therefore turn to the matter as to whether the public interest should be taken into account. I think the public interest is a relevant factor both in orders for costs and in orders for security for costs. It will operate, of course, in different ways depending upon the circumstances of each case but it is a factor to be taken into account.
This is public interest litigation. The mangroves in the Hinchinbrook Channel are a matter of great public debate at the present time and the proceedings have been brought by an incorporated body, which falls within s.14 of the World Heritage Properties Conservation Act 1983 (Cth) as being an interested person, that is to say it is a body "the objects or purposes of which include, and activities of which relate to, the protection or conservation of the property or of a property of a kind that includes the property".
That was a factor which influenced Branson J in the first instance when she was asked to make an order for security for costs. Such an order was not made when the application was before her during the first hearing.
The present position is that a decision has been given; judgment has been handed down by Sackville J and it is clear from that judgment that there are matters that can be put one way or the other. I have certainly not formed any view about them, partly because they are quite complex points. But it is clear enough from his Honour's judgment that the issues involved are complex matters and arguments can be put on both sides.
For that reason, it seems to me that this appeal is simply the inevitable consequence of the initiation of the proceedings and it is in the public interest that the questions be resolved and I think, in that case, having regard to the public interest in having those questions resolved, it would be inappropriate to now require the appellants to provide security for costs, so I will refuse the motions. I will order that the costs of the motion be costs of the appeal.
I certify that this and the preceding 3 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.
Associate:
Date: 28 April 1997
Counsel for the applicant: N.J. Williams and T. Reilly
Solicitor for the applicant: Environmental Defender's Office
Counsel for the 1st respondent:J.S. Hilton SC
Solicitor for the 1st respondent:Australian Government Solicitor
Counsel for the 2nd respondent: S.M. Gorry, Solicitor
Solicitor for the 2nd respondent: Henry Davis York
Date of hearing: 14 April 1997
Date of judgment: 14 April 1997
