FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - costs - “public interest” litigation - discussion of the principle of Oshlack v Richmond River Council - appropriate discretionary order where environmental body had persisted in insupportable claims.

Federal Court of Australia Act 1976 s 43

Oshlack v Richmond River Council (1998) 152 ALR 83, distinguished

Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 142 ALR 632; (1997) 147 ALR 608, referred to

Latoudis v Casey (1990) 170 CLR 534, referred to

Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412, followed

Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, followed

Qantas Airways Ltd v Cameron (1996) 148 ALR 378, followed

FRIENDS OF HINCHINBROOK SOCIETY INC v THE MINISTER FOR THE ENVIRONMENT & ORS

NG 164 of 1997

Northrop, Burchett and Hill JJ

Sydney

30 April 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal against the costs orders made by the trial judge be dismissed.

2.         The appellant pay the respondents’ costs of the appeal, including the costs of the           appeal with respect to the orders as to costs made at first instance.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

When the court delivered judgment dismissing the appeal against the substantive decision in this matter (Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147 ALR 608), it deferred deciding the question of the appropriate orders as to costs, in the application at first instance and in the appeal, for further consideration following the expected delivery of judgment by the High Court of Australia in Oshlack v Richmond River Council. Directions were given concerning the lodgment of any further submissions which might become appropriate.   The High Court has now delivered judgment:  Oshlack v Richmond River Council (1998) 152 ALR 83, and the first and second respondents have lodged written submissions, while the appellant has advised the court that it does not intend to do so.  It did present submissions at an earlier stage of the appeal, when it contended that the litigation was “public interest litigation”, in which costs orders against it should not have been made by the trial judge, and should not be made by this court.

The appellant is a body corporate the objects, purposes and activities of which include, it was accepted, the protection or conservation of the world heritage properties involved in the proceedings.  It relied on ss 13 and 14 of the World Heritage Properties Conservation Act 1983 as conferring standing on it to seek relief by way of judicial review of the decisions of the Minister for the Environment in question in this appeal.  Originally, the respondents to the appellant’s application were the Minister for the Environment and Cardwell Properties Pty Ltd, a developer.  But an interlocutory order was made joining the State of Queensland as third respondent on condition that it would not be entitled to seek an order for costs.  Sackville J dismissed the application:  Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 142 ALR 632.  He made no order in respect of the costs of the State of Queensland, but he ordered the appellant to pay the costs of the other respondents.

When the appellant launched its appeal, the State of Queensland was included among the respondents to that appeal.  At the hearing, the appellant submitted that, should the appeal be dismissed, it ought not to be ordered to bear the costs of any respondent because the litigation is public interest litigation, and furthermore it ought not to be ordered to pay the costs of the State of Queensland because of the condition on which that State was joined as a respondent to the proceeding below.  So far as the latter point is concerned, Hill J (with whose reasons Northrop J agreed) rejected the argument.  His Honour said (at 641) that the State of Queensland was a proper party to the proceedings, which the appellant had chosen to make a party to its appeal. 

It was the question of the possible effect of the appellant’s claim to have brought the proceedings as public interest litigation which led to the deferment of the making of orders.  But after the handing down of the High Court’s judgment in Oshlack v Richmond River Council, and the lodgment with this court of written submissions made on behalf of two of the respondents, the appellant’s solicitor notified the court “that [his] client [did] not oppose the making of an order that it pay the costs of the respondents in these proceedings”.  He did not, however, consent to such an order. 

In Oshlack v Richmond River Council, proceedings had been unsuccessfully initiated by Mr Oshlack in the Land and Environment Court of New South Wales.  He claimed that he had done so in order to protect fauna endangered by a proposed development.  Stein J, at first instance, having rejected his application, determined that there should be no order as to costs.  The Court of Appeal of New South Wales set aside this determination, ordering Mr Oshlack to pay the costs of the Richmond River Council: Richmond River Council v Oshlack (1996) 39 NSWLR 622.  It did so on the basis that the principle of Latoudis v Casey (1990) 170 CLR 534 applied.  But, on appeal, the High Court has now determined by majority (Gaudron, Gummow and Kirby JJ, Brennan CJ and McHugh J dissenting) that the Court of Appeal was in error in overturning the discretionary decision of the trial judge.  However, it is important to observe the question with which the High Court was concerned.  This was not whether, in a category of litigation described as “public interest litigation”, an unsuccessful challenger should on that account be relieved of the ordinary consequence of a costs order in favour of the party challenged, but whether the Court of Appeal had been entitled to disturb the exercise of discretion of the trial judge in the particular case.  Gaudron and Gummow JJ made it clear (at 91) that debate about the concept of “public interest litigation” tended “to distract attention from the legal issue which [was] at stake”.  That issue was contained in the question “whether the subject matter, the scope and purpose of s 69 [the statutory provision conferring on the Land and Environment Court its discretion to award costs] are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be ‘definitely extraneous to any objects the legislature could have had in view’ in enacting s 69.”  Their Honours answered this question in the negative.  Similarly, the other member of the majority, Kirby J, held (at 126) that “it was open to Stein J to conclude that a departure from the ordinary compensatory rule was appropriate in the circumstances.  The Court of Appeal erred in disturbing the order which he made.”

Accordingly, the majority decision of the High Court does not lay down a rule for application in other cases in the making of costs orders.  It affirms the width of the discretion conferred upon a court in relation to costs, with particular reference to the specially wide discretion it held to exist under the legislation with which Oshlack v Richmond River Council was concerned.

Although the appellant in Oshlack v Richmond River Council had placed much reliance on the concept of public interest litigation, the joint judgment of Gaudron and Gummow JJ contains no suggestion that their Honours intended to modify in any way the views on that subject embraced by Gummow J, when a member of this Court, in Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 416-417.  His Honour there expressed his agreement with a lengthy passage which he quoted from Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 170-171, concluding:

“If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded.”

This passage was also approved in the joint judgment of Lindgren and Lehane JJ in Qantas Airways Ltd v Cameron (1996) 148 ALR 378 at 380, cited in turn by Hill J in his earlier judgment in the present matter (at 641).

Gummow J in Council of the Municipality of Botany distinguished (at 417) an earlier decision in the line of cases that led to Oshlack v Richmond River Council on the same ground to which the joint judgment of Gaudron and Gummow JJ points in the High Court case (at 95), namely, that the legislation in question in those cases “is not to be narrowly construed” as regards the discretion it confers with respect to costs.

In the present case, both at first instance and on appeal, the broad discretion applies which is conferred on the Federal Court of Australia by s 43 of the Federal Court of Australia Act 1976.  There is no basis at all upon which we could hold that the trial judge’s discretion in relation to costs miscarried.  So far as the costs of the appeal are concerned, there is nothing to disentitle the respondents to the compensation of an order for their costs.  We are not persuaded that the appellant, which persisted in insupportable claims, should be relieved at
the expense of the respondents.  Accordingly we order that the appellant pay the respondents’ costs of the appeal.

Addendum

After the matter had been listed for judgment, counsel for the appellant indicated informally that he understood the appellant was now prepared to consent to orders for costs.  That indication did not, in the circumstances, seem to us to provide any reason to delay the handing down of our decision.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:  30 April 1998