FEDERAL COURT OF AUSTRALIA

Tasmanian Conservation Trust v Minister for Environment and Heritage

[2004] FCA 883

TASMANIAN CONSERVATION TRUST INCORPORATED v MINISTER FOR THE ENVIRONMENT AND HERITAGE, RIVERS AND WATER SUPPLY COMMISSION AND THE STATE OF TASMANIA

N 2007 of 2003

JACOBSON J

7 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

1.      The applicant be granted leave to discontinue on the basis that the discontinuance is to be a defence to any proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or otherwise for the same or substantially the same cause of action as is the subject of these proceedings.

2.   There be no order as to costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to discontinue these proceedings under O22 r2(1)(d).  The respondents consent to a discontinuance on terms that it be a defence to any proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or otherwise for the same or substantially the same cause of action as is the subject of these proceedings.

2                     The only issue which arises on the application for leave to discontinue is the question of costs.  It is agreed between the applicant and the first respondent that, as between those parties, there is to be no order as to costs.  However, the second and third respondents seek an order that leave to discontinue be on terms that the applicant pay their costs of the proceedings.  They rely on the well-known principle that the policy which underlies the rule relating to leave to discontinue is that the discontinuing party should be liable for the other party’s costs unless the Court otherwise orders; FAIRA Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 9.

3                     The applicant relies on the principle stated by McHugh J in Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 (“Lai Qin”) that in cases where there has been no hearing on the merits, it may be appropriate for there to be no order as to costs if the parties have acted reasonably in commencing and defending the proceedings.  His Honour stated the principle at 625 as follows:-

"If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings."

4                     This passage was referred to by Stone J in Harvey Norman Holdings Ltd v Fels [2002] FCA 13 at [7].  Her Honour there said:-

“The award of costs is also in the discretion of the Court: Federal Court of Australia Act 1976 (Cth) s 43(2). Discontinuance pursuant to leave granted under O 22 r 2(1)(d) does not attract an automatic award of costs against the discontinuing party. As Finn J observed in O´Neill v Mann [2000] FCA 1680 ("O´Neill") at [13], "[t]he conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs." The relevant principle was stated in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 143 ALR 1 ("Lai Qin")by McHugh J at 3 – 4.”

5                     The second and third respondents do not contend that the commencement of the proceedings was unreasonable.  Rather, the gravamen of their submissions is that it has been plain since January 2004 that the principal basis upon which the proceedings were commenced no longer had any foundation so that the continuation of the proceedings from that time was unreasonable.

6                     The applicant fulfils the role of Tasmania’s peak conservation group.  It is a voluntary non-profit organisation.  It commenced these proceedings on 26 November 2003 seeking to set aside the decision of the first respondent to approve the construction and operation of the Meander Dam in the Meander Valley, Tasmania.  The approval had certain conditions attached in relation to Epacris exserta (“E. exserta”) and the spotted tail quoll. 

7                     In January 2004, Dr Ron Crowder published a paper relating to taxonomic changes involving E. exserta providing scientific evidence to demonstrate that the relevant plant variety growing in the Meander Valley was not E. exserta but was a different variety of plant which was not listed as threatened under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).   A copy of the paper was provided to the applicant’s solicitors on or about 18 February 2004.

8                     On 29 January 2002 the Tasmanian Department of Primary Industries Water and Environment (“DPIWE”) requested that the Minister revoke the conditions attached to the approval that related to the protection of the E. exserta as the proposed action would not have any impact on a listed threatened flora species.

9                     On 26 March 2004 the solicitors for the first respondent wrote to the applicant’s solicitors referring to Dr Crowder’s paper and to the request made by DPIWE to the Minister to revoke the conditions relating to the protection of the E. exserta.  The letter gave notice to the applicant’s solicitors that the Minister intended to advertise the possible extent of his powers under the Environmental Protection and Biodiversity Act to revoke the conditions.

10                  In my interlocutory judgment of 16 April 2004 at [8] I referred to the fact that a request had been made to the Minister to revoke the conditions and that this may have some impact on the outcome of the proceedings.

11                  On 4 May 2004 the solicitors for the first respondent wrote to the applicant’s solicitors informing them that the Minister had decided to revoke the conditions of approval relating to the E. exserta.

12                  The letter stated, inter alia:-

“The Minister decided to revoke and vary the conditions of the approval in light of new information about the taxonomy of the health plants affected by the proposed action.  That information would also justify a further amendment of your client’s application for an order of review.  We have in mind the particulars under grounds 1(b) and 2(1) in the application.  As the proposed action will not have any impact on epacris exserta, it seems that the Court should decline to grant any relief sought by your client in so far as any reviewable error by the Minister related to his consideration of that species.”

13                  On 1 June 2004 the applicant’s solicitors had a conference with her counsel to explore the future of the proceedings in light of the revocation of the conditions relating to the
E. exserta.  The evidence discloses that this was the earliest date on which a conference could be arranged.

14                  The applicant’s written submissions for the final hearing of the proceedings were due on 15 June 2004.  Those submissions were not supplied.  Instead, on 18 June 2004 the applicant’s solicitors wrote to the solicitors for the respondents stating that the applicant had instructed its solicitors to discontinue the proceedings.

15                  Counsel for the applicant submits that whilst it is true that the applicant was aware of the possibility of the revocation of the relevant condition in about February 2004, it was not until the applicant was notified on 4 May 2004 of the Minister’s decision that the possibility crystallised into an actual decision which removed one of the principal bases upon which the action was founded.

16                  I accept that submission.  I also accept the submission of the applicant’s counsel that, although there was some six weeks delay in coming to a decision to discontinue at a critical point of time in the proceedings, the delay was not, on balance, unreasonable.

17                  It follows that I am of the view that the continuation of the proceedings until 18 June 2004 was reasonable.  The applicant was entitled to take that period of time to determine that the further prosecution of the proceedings had become futile in view of the Minister’s decision to revoke the condition affecting the E. exserta.

18                  Accordingly, as was said by McHugh J in Lai Qin, the proper exercise of my discretion is that I will make no order as to costs.

19                  The orders I will make are therefore that the applicant have leave to discontinue on the basis as agreed between the parties with no order as to costs. 

Associate:

Date:    7 July 2004