FEDERAL COURT OF AUSTRALIA

Lansen v Minister for the Environment and Heritage (No 3) 2008 FCA 1367

COSTS – whether costs should be awarded against a non-party – role of Northern Land Council – costs order sought against non-party refused

COSTS – public interest – whether costs order should be made in favour of successful respondents – applicants claim to have pursued litigation in public interest

COSTS – costs of issues

Federal Court of Australia Act 1976 (Cth)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Native Title Act 1993 (Cth)

Supreme Court Act 1970 (NSW)

Environment Assessment Act 1982 (NT)

Mining Management Act 2001 (NT)

McArthur River Project Amendment (Ratification of Mining Authorities) Bill 2007 (NT)

Environmental Protection and Biodiversity Conservation Act 1999 (Cth)

Mining Management Act 2001 (NT)

Lansen v Commonwealth Minister for Environment and Heritage [2008] FCA 903

Lansen v Commonwealth Minister for Environment and Heritage (No 2) [2008] FCA 909

Knight v FP Special Assets Ltd (1992) 174 CLR 178

Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429

Manton International Pty Ltd (in liquidation) v  Deputy Commissioner of Taxation [2006] FCAFC 76

Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries Qld Pty Ltd (1993) 45 FCR 224

FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340

Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 488

Northern Land Council v Commissioner of Taxes (2002) 171 FLR 255

Cummings v Lewis (1993) 41 FCR 559 at 600; Ruddock v Vardarlis (No 2) (2001) 115 FCR 229

Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863, (2007) 98 ALD 651

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

Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186

Oshlack v Richmond River Council (1998) 193 CLR 72

Oshlack v Richmond River Shire Council (1994) 82 LGERA 236

Richmond River Council v Oshlack (1996) 39 NSWLR 622

Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55

McArthur River Mining Pty Ltd v Lansen [2007] NTCA 5

Cretazzo v Lombardi (1975) 13 SASR 4

Cretazzo v Lombardi (1975) 13 SASR 4

Keddie v Foxall [1955] VR 320

Verna Trading Pty ltd v New India Assurance Co Ltd [1999] 1 VR 129

HARRY LANSEN, PETER ELLIS, JERRY ANDERSON, DEREK ANDERSON, GORDON LANSEN, RONNY RAGGETT, NANCY KUNOTH, BILL DODD, ROGER WILSON, SWEENY SWANSON, BRUCE JOY AND BILLY COOLIBAH ON BEHALF OF THE KURDANJI PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6020/98), LES HOGAN ON BEHALF OF THE GARAWA AND GURDANJI PEOPLE (IN HIS CAPACITY AS REGISTERED NATIVE TITLE CLAIMANT IN FEDERAL COURT PROCEEDINGS NTD 6020/00), ANNIE ISAAC AND DINAH NORMAN ON BEHALF OF THE RRUMBURRIYA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6014/00), WENDY ROPER, GORDON LANSEN, PHILLIP TIMOTHY, GRAHAM FRIDAY, MAVIS TIMOTHY ON BEHALF OF THE RRUMBURRIYA BORROLOOLA GROUP (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6003/03), ANNIE ISAAC ON BEHALF OF THE RRUMBURRIYA PEOPLE (IN HER CAPACITY AS REGISTERED NATIVE TITLE CLAIMANT IN FEDERAL COURT PROCEEDINGS NTD 6047/01), LEONARD NORMAN, WAILO MCKINNON, ELIZABETH MCCRACKEN, PHILLIP TIMOTHY, NORMA TIMOTHY, ROY HAMMER, GRAHAM FRIDAY, MAVIS TIMOTHY ON BEHALF OF THE ANTHAWIRRIYARRA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6024/98) and BILLY COOLIBAH, GORDON LANSEN AND ROY DIXON ON BEHALF OF GURDANJI AND GARAWA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6031/00) v COMMONWEALTH MINISTER FOR ENVIRONMENT AND HERITAGE and MCARTHUR RIVER MINING PTY LTD

NTD 4 of 2007

MANSFIELD J

5 SEPTEMBER 2008

ADELAIDE

THE COURT ORDERS THAT:

1.                  The applicants pay to the first respondent and the second respondent 25 per cent of each of their costs of the proceeding to be taxed, such costs to exclude the costs of and incidental to the applicants’ notice of motion of 29 April 2008.

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

REASONS FOR JUDGMENT

1                     On 13 June 2008, I delivered judgment in this matter:  Lansen v Commonwealth Minister for Environment and Heritage [2008] FCA 903.  I dismissed the application.  I did not then deal with the costs of the proceeding.  I had also previously, on 13 May 2008, declined to make any order on the applicants’ motion of 29 April 2008 for an interlocutory order restraining the second respondent from further evacuating the upstream and downstream ends of the McArthur River diversion channel and associated orders (the applicants’ motion):  Lansen v Commonwealth Minister for Environment and Heritage (No 2) [2008] FCA 909.  I reserved the costs of the applicants’ motion.

2                     As the applicants wished to consider the reasons for judgment published on 13 June 2008, I set a timetable for the exchange of submissions as to the costs of the proceeding.

3                     The disputes as to costs are now as follows:

1.                  The applicants (the Lansen applicants) contend that there should be no order for costs of the proceeding, including the costs of the applicants’ motion.

2.                  The first respondent (the Minister) seeks an order for costs of the proceeding against the applicants, save for the costs of the applicants’ motion which did not directly concern the second respondent.  (The Minister was represented by counsel at the hearing of the applicants’ motion but does not seek costs for that attendance.)

3.                  The second respondent (MRM):

(a)                agrees that there should be no costs in relation to the applicants’ motion, but otherwise

(b)               seeks costs, or alternatively 80 per cent of its costs, of the proceeding against the Lansen applicants, and also

(c)                seeks costs, or alternatively 80 per cent of its costs, of the proceeding jointly against the Northern Land Council (the NLC) as well as the Lansen applicants.

4.                  The NLC is obviously aware of the claim for costs made against it by MRM.  It has addressed that claim, and does not assert that it should be refused by reason of any procedural flaw in the way that costs claim has been made, nor seek to make oral submissions.  It opposes the claim of MRM for costs of the proceeding to be ordered against it.

4                     In the circumstances, I do not need to address the costs of the applicants’ motion.  There will be no order as to the costs of and incidental to it.

MRM’s claim for costs against the NLC

5                     There is no doubt that the Court has power, in appropriate circumstances, to order that a party’s costs of a proceeding be paid by a person who is not a party on the record:  Knight v FP Special Assets Ltd (1992) 174 CLR 178 (Knight); Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 (Gore); Manton International Pty Ltd (in liquidation) v  Deputy Commissioner of Taxation [2006] FCAFC 76; Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries Qld Pty Ltd (1993) 45 FCR 224.

6                     In Knight, Mason CJ and Deane J (with whom Gaudron J agreed) said at 188-189 that the cases awarding costs against a non-party may be explained on the basis that the power to award costs could be exercised against a non-party who was the “real party” to the litigation.  Their Honours then concluded at 192-193:

For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation.  That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation.  Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.

That case in the High Court decided that the Supreme Court of Queensland had jurisdiction to make an order for costs against the receivers of companies which were the unsuccessful parties in proceedings, the receivers themselves not being parties to those proceedings (see per Mason CJ and Deane J at 181).

7                     Dawson J concurred in the result in that case.  His Honour said at 202:

The cases therefore establish a long-asserted jurisdiction to award costs in appropriate cases against a person who is not a party to the proceedings where that person is the effective litigant standing behind an actual party or where there has been a contempt or abuse of the process of the court.  Even if the cases were confined to ejectment proceedings (and clearly they are not), the principle lying behind the ejectment cases is that the real litigant rather than the nominal party may be made liable for costs.

8                     It was recognised by the Full Court of this Court (O’Loughlin, Whitlam and Marshall JJ) in Gore at 437, [23] that, in applying the principles discussed in Knight, the circumstances in which costs might be awarded against a non-party have not been exhaustively defined.  Given the discretionary nature of the power to award costs, that is necessarily so.  See also FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 (FPM Constructions); Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 488 (Applicant NAGM).

9                     MRM contends that any costs order should be jointly against the applicants and the non-party NLC.  It says that the NLC has funded the applicants’ costs of the proceeding, and has directed its conduct.  It also says that the NLC could have, but chose not to, bring the proceeding in its own name, or jointly with the other applicants.  It also says that the applicants are impecunious and that the NLC is publicly funded.  Finally, it says that its own costs are substantial.  On that combination of matters, MRM contends that, in the interests of justice, the costs order should be made against the NLC jointly with the applicants.

10                  It is clear from its own submissions that MRM recognises that, if the costs order is made jointly against the applicants and the NLC, the NLC will in fact bear the responsibility of paying those costs.

11                  The NLC is apparently the Aboriginal Land Council established under s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act) relevant to the area of the McArthur River Mine.  Under s 23(1)(a) and (c) of that Act, its functions include ascertaining and expressing the wishes and the opinion of Aboriginals living in its designated area as to the management of Aboriginal land in that area, and consulting with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in that area with respect to any proposal relating to the use of that land.  The McArthur River Mine is not Aboriginal land as defined in s 3, but as I noted in the primary reasons for judgment at [3], there is proximate Aboriginal land.  The NLC is also the relevant representative body for the area under s 203AD of the Native Title Act 1993 (Cth).  Section 203BB(1) and (2) require the NLC upon request to facilitate and assist persons who may hold native title.  That assistance may, I assume, include the provision of legal assistance; see also ss 34, 39, 63 and 64 of the ALR Act.  The applicants are variously members of seven native title claim groups seeking the determination of native title rights and interests over land in the vicinity of the McArthur River Mine and land which may have been affected by the proposed McArthur River diversion:  see the primary reasons for judgment at [3].  There is nothing to indicate that the NLC was doing other than performing its functions in support of the Lansen applicants in the role it took in the overall conduct of the proceeding.

12                  In my view, that role of the NLC does not amount to it being the real party conducting the proceeding.

13                  There is no evidence that the applicants simply lent their names to the proceeding, and were uninterested in its result.  Their interests or potential interests in the land upstream and downstream of the McArthur River Mine were real in a practical sense, as well as in a theoretical sense.  As any land owner or occupier (or putative land owner or occupier), they were entitled to be concerned about the potential environmental impacts of the proposed development of the mine.  There is no reason to think they did not care about those impacts, or to think they did not wish to do something about them.  The nature of the case was not such as to infer to the contrary because none of them gave evidence.  (I use the terms land owner or occupier in a loose way to include rights and interests which may exist under the ALR Act or the Native Title Act 1993.)

14                  I am also not persuaded that the NLC could have conducted the proceedings in its own name.  The standing of the applicants was a significant issue, until ultimately acknowledged.  MRM has not pointed to any clear basis for the NLC to have had standing to have brought the proceedings.  Nor, indeed, has it pointed to any power in any enactment or in the NLC constitution which would have enabled it to do so irrespective of the wishes of Aboriginal persons or groups claiming interests in the land potentially affected by the proposed mine development.

15                  The NLC did not contest that it funded the proceedings through engaging solicitors and counsel.  That was one of its functions.  It is funded under a statutory scheme, and as discussed in Northern Land Council v Commissioner of Taxes (2002) 171 FLR 255 by Mildren J (with whom Martin CJ agreed) at 262 [28], 264 [34] and by Thomas J at 277 [84], it performs its functions to ameliorate the disadvantage which some Aboriginal persons or communities may experience in asserting their rights and interests.  I do not regard the fact that the NLC engaged and funded solicitors and counsel for the Lansen applicants, in the circumstances, as of much weight.  The NLC did not itself stand to gain directly from a successful outcome of the proceedings;  cf Gore at 452 [64].

16                  In FPM Constructions in the New South Wales Court of Appeal at [210], and in Applicant NAGM in the Full Court of this Court at 500-501, [66]-[68], some circumstances were identified in which a non-party order for costs may be made.  Contrary to MRM’s submission, for the reasons given, I do not consider the NLC position falls within the circumstances identified in FPM Constructions in which a third party order for costs might be made.  In that case, a third party costs order was ultimately refused:  see per Basten JA (with whom Beasley and Giles JJA agreed) at [198]-[215].  As I have found in this matter, Basten JA said that the third party concerned was not the “real party” and that the plaintiff had a real interest in the outcome of that proceeding.  The third party in that case was the plaintiff’s sole director, and was its guiding force including by instructing its counsel.  As with the NLC in this matter, the third party’s role was a legitimate one.  Basten JA at [214] pointed out the need to make an overall evaluative assessment of the factors which may be relevant, so that the role of a third party in the conduct of a proceeding including the provision of funding for its conduct is properly assessed.  That, of course, does not preclude the exercise of the power in other appropriate circumstances.  In Applicant NAGM, the Court (Sackville, Allsop and Jacobson JJ) at 501, [68] emphasised that an order for the payment of costs by a non-party is exceptional and any application for such an order “should be treated with considerable caution”. 

17                  I have carefully considered the matters put by MRM.  I assume that MRM’s costs are substantial and that the applicants are unlikely to be able to satisfy any order for costs against them.  However, I have come to the firm view, for the reasons I have given, that it is not appropriate to order the NLC to pay costs of the proceedings to MRM, assuming I make an order for costs of the proceedings in its favour against the Lansen applicants.

The claims for costs against the applicants

18                  Ordinarily, costs follow the event so that a successful litigant receives its costs, unless there are features of the case which justify some other order:  Cummings v Lewis (1993) 41 FCR 559 at 600; Ruddock v Vardarlis (No 2) (2001) 115 FCR 229 at 234-235, [11] (Ruddock).  Sometimes, where a party has succeeded on some issues and failed on others, the costs order reflects those successes and failures rather than simply the final outcome.  As was emphasised in Ruddock at 236 [13], the power to award costs is a discretionary one, to be exercised in the interests of justice in all the circumstances.

19                  The Lansen applicants submit that each party should bear its own costs because:

(1)               the proceeding concerned public rather than private rights and the litigated issues were novel, difficult and significant, and in several respects have consequences that extend beyond the present litigation;

(2)               related litigation in the Supreme Court of the Northern Territory and the reversal of its outcome by special Territory legislation affected the course of the proceeding;

(3)               to a degree there has been some mixed success on the various disputed questions of fact and law that fell for decision; and

(4)               the Lansen applicants also submit that there was some “duplication of costs through the part played by MRM”.

20                  I will address those issues in turn.

(1)        Public Interest considerations

21                  The breadth of the costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) was discussed both in Ruddock v at [9] per Black CJ and French J, and in Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19. 

22                  The latter case concerned the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), the same Act which the present proceeding concerned.  The Full Court (Branson, Tamberlin and Finn JJ) made costs orders in that case to reflect the fact that the principal issues determined on the appeal concerned the proper construction of the Act, and were issues of critical importance to the Minister in performing responsibilities for the administration of the Act.  Hence, their Honours found, it was of general importance to the Minister and to the public that the law concerning the proper construction of the provisions of the EPBC Act should be clarified.  The Full Court also had regard to the fact that the appellant’s concern was shared with a large section of the Australian community, and that the appellant was seeking to avoid harm to the Australian environment, and so was not motivated by self-interest.  Upon that basis, the Full Court directed the appellant to pay 70 per cent of the Minister’s costs of the appeal and to pay 40 per cent of the costs of the entity in whose favour the decision under the Act had been made.  The costs of that entity were reduced to 40 per cent because it had played a larger part in the appeal than was necessary.

23                  The costs order at first instance was that the appellant (the then applicant) should pay the costs of both the Minister and the putative developer (see The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863 (2007) 98 ALD 651).  That order was not challenged on the appeal.  The primary judge, after referring to Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166; and Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186, considered whether there were sufficient public interest considerations connected with or leading up to the litigation that warranted a departure from or outweighed the consideration that a wholly successful respondent would ordinarily be awarded costs, but was not persuaded that that was the case:  see at [30], 657.  His Honour said the decision on that question was “finely balanced” at [31], 657.

24                  It is clear that there is no general rule that costs will not be awarded in a case that raises matters of public interest, or that cases which raise matters of public interest give rise to a special costs regime:  see Oshlack v Richmond River Council (1998) 193 CLR 72 at [30]-[31] and [49] per Gaudron and Gummow JJ (Oshlack); Ruddock at [18] and [21] per Black CJ and French J.

25                  The majority of the High Court (Gaudron, Gummow and Kirby JJ, Brennan CJ and McHugh J dissenting) in Oshlack upheld a decision of the primary judge in Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 that there were sufficient special circumstances to justify departure from the ordinary rule as to costs, and that there should be no costs payable by the unsuccessful applicant.  The applicant had challenged the validity of a development consent for the subdivision of environmentally sensitive land, where there was a significant public interest.  Both the Council granting the consent and the developer were parties.  Only the Council appealed from that decision:  see Richmond River Council v Oshlack (1996) 39 NSWLR 622. 

26                  In Oshlack, Gaudron and Gummow JJ discussed s 69 of the Land and Environment Court Act 1979 (NSW) under which the primary judge had exercised his discretion not to order costs.  Their Honours at [21]-[45] came to the view that the costs discretion under s 69 was a general discretion, akin to that available under e.g. s 76 of the Supreme Court Act 1970 (NSW).  For the same reasons, I think it is akin to the costs discretion available under s 43 of the Federal Court of Australia Act 1976 (Cth).

27                  The plurality judgment then, at [46]-[49] considered that the primary judge had correctly identified that the litigation was concerned more with public than with private rights, and that it was appropriate for the primary judge to have taken into account that the appellant’s pursuit of the litigation was motivated only by the desire to uphold environmental law and the preservation of endangered fauna, that there was a “public interest” in the outcome of the litigation because significant numbers of the public shared the appellant’s stance, and that the basis of the challenge was arguable and had resolved significant issues about the proper interpretation of the legislation and its application to future development approval applications.

28                  The Lansen applicants correctly contend that Oshlack recognises that the nature of the case, namely that it concerned the proper application of a law requiring the balancing of the protection of environmental interests in relation to proposed development, is not extraneous to the exercise of the costs discretion.  This case did concern public interests, that is it concerned whether the Minister’s decision was made in accordance with the EPBC Act so that the environmental interests which the Act recognised were properly considered.

29                  In this matter, the Lansen applicants had no financial motive.  They claimed (albeit unsuccessfully) that the environmental interests which the EPBC Act recognised were not properly considered by the Minister because the Minister had not made the decision in accordance with the EPBC Act.  They were appropriate persons to have raised those issues.  Ultimately, there was no issue as to their standing to do so.  Indeed, ss 487 and 488 of the EPBC Act broaden the rules as to standing, so that the interests which the Act establishes in environmental matters may be sought to be protected without the fiat of the Attorney-General.

30                  The concerns of the Lansen applicants were real ones.  The applicable decision-making procedures under the Act were not clear.  There was a real issue as to whether Pt 8 of Ch 4 of the Act should apply, or whether by reason of s 83 the processes under the Bilateral Agreement should apply.  There was a real issue as to whether Assessment Report 51, which itself said that there was insufficient information to adequately assess the potential impacts of the proposed mine development on the freshwater sawfish, was an assessment report under the Bilateral Agreement so that s 132 entitled the Minister to seek further information.  There was a real issue as to whether the process by which the Territory Minister then came to provide information generally of the character sought by the Minister by the provision of Assessment Report 54, which itself was developed from a Public Environment Report under the Environment Assessment Act 1982 (NT) in the course of which MRM provided further information generally on the matters raised by the Minister, was a process authorised by the Act under the Bilateral Agreement.  Each of those matters, whilst fact-specific in one sense, raised issues as to the proper construction of the EPBC Act.  I do not think that the issue whether the Minister failed to take into account relevant conditions imposed under a law of the Northern Territory (on which the Lansen applicants succeeded in part) was of the same character.  It was very case specific, although the consequential question whether the failure of the Minister to have done so necessarily invalidated the decision had a wider significance.  That is not a full statement of the issues raised by the Lansen applicants to challenge the validity of the Minister’s decision, but it is sufficient to identify that at least those issues were of general public significance in the sense that they will inform processes for future decision making under the EPBC Act.  Hence, I think the decision on those issues will have a wider public significance than to the particular parties in the litigation.

31                  In my judgment, those considerations are sufficient to remove the present case from the routine application of the general rule that costs should follow the event.

32                  The balancing of the factors I have referred to against the general position that costs should be awarded to a successful respondent party on a compensatory basis for having been required to be involved in the litigation is a difficult one.  The fact that the Lansen applicants were not motivated by financial gain is, I think of relatively minor significance.  But, their close relationship to the land upstream and downstream of the proposed river diversion of the McArthur River means that they were in a special position to endeavour to safeguard the environmental interests in the way the EPBC Act prescribed, if they considered that its processes were not being followed:  see eg s 3(1)(d) and s 3(2)(g)(iii).  It is fair to recognise that the applicants, as representatives of the entities the subject of a grant under the ALR Act and as putative native title claimants in a remote region of Australia, have and (at least for present purposes) legitimately assert a special relationship with the country and special responsibilities to look after country and its spiritual and physical elements.

33                  I accept that, as the Minister submitted, the potential impact of the mine development and the river diversion was not of notorious public interest (as in some other instances).  However, the degree of public debate is but one indication of the public interest which the Act itself recognises.  And, as the Minister submitted, care must be taken to ensure that so-called public interest litigation does not become “an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner”:  Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 at [11].

34                  In my judgment, the principal issues raised by the Lansen applicants as identified above were of such significance, together with the other factors I have discussed, as to result in the costs discretion being exercised largely in favour of the Lansen applicants’ contention.  Put another way, I consider the scales have shifted from a starting point in favour of a costs order to the Minister and MRM to a point where there should be no or a relatively small order as to costs of the proceeding.  I have therefore rejected the Minister’s submission that the issues which I have specifically identified raised “no novel or difficult question of general importance”.  Each of these issues was complex.  The issue as to the intersection of the operation of Pt 8 and the Bilateral Agreement (enlivened by s 83) is unlikely to re-occur, but the other issues as to the requirements for a valid assessment report for the purposes of the EPBC Act, as to the proper means of responding to a request for information under s 132, and as to the consequences of failing to have regard to a relevant consideration have the wider character of exposing the proper construction and application of the Act in the future, in the interests of the public.

35                  I will defer reaching a concluded view as to any appropriate costs order against the Lansen applicants until I have considered the other matters they have raised.

(2)        The litigation in the Supreme Court of the Northern Territory

36                  The proceeding was commenced on 18 February 2007.  On 13 March 2007 directions were made for affidavit evidence and written submissions, and the application was listed for trial for 3-4 May 2007.  On 30 April 2007, Angel J published reasons for judgment in the related Supreme Court proceedings, concluding that the proposed open cut mining operation was prohibited by the Mining Management Act 2001 (NT).  On 2 May 2007, the McArthur River Project Amendment (Ratification of Mining Authorities) Bill 2007 (NT) was introduced into the Legislative Assembly of the Northern Territory.  On 3 May 2007, Angel J declared that the Territory mining approval, constituted by the grant of a mining authorisation and acceptance of a mining management plan under the Mining Management Act, was invalid and quashed that approval.  However, on 4 May 2007, the Territory Ratification Act commenced.

37                  The Lansen applicants contend that, if the Ratification Act had not been enacted, the immediacy of the proceeding may have been diminished.  It is correct that the initial hearing on 3 and 4 May 2007 proceeded on a somewhat constricted basis.  However, the orders of Angel J were, on 18 July 2007, set aside by the Northern Territory Court of Appeal:  McArthur River Mining Pty Ltd v Lansen [2007] NTCA 5 by reason of the Ratification Act:  see at [12].  To the extent that the Lansen applicants had earlier placed reliance on the orders of Angel J, they were no longer able to do so.

38                  I am not satisfied that those events so altered the overall course of the hearing, or the work involved by any party in the course of the hearing, as to warrant any particular order for costs other than that which I am disposed to make.  There is insufficient material, in my view, for the events to which I have just referred to lead to any other conclusion.

 (3)       The resolution of particular issues

39                  A successful party who has failed on an issue may be deprived of its costs and be ordered to pay the costs of its opponent on that issue, although the Court should make such an apportionment with caution:  Cretazzo v Lombardi (1975) 13 SASR 4 at 16.

40                  The Lansen applicants submit that, if costs are to be awarded against them, the costs awarded should take account of:

(a)        the fact that the competing cases on many construction issues were close, and that certain of their contentions were accepted, although the points were not ultimately decided in their favour.  They identified the following issues:

·                    whether s 83 operated to exclude the assessment process provided for in Pt 8 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the Act);

·                    whether Assessment Report 51 was an assessment report for the purposes of the Bilateral Agreement;

·                    the manner of operation of s 132 of the Act; and

·                    whether there was a breach of s 134(4)(a) of the Act by the Minister (even though it did not result in invalidity of the decision);

(b)       their success in establishing that conditions imposed by the Northern Territory under the Mining Management Act 2001 (NT) were relevant conditions which the Minister was required to consider, and that the Minister had failed to consider them, contrary to s 134(4)(a) of the Act; and

(c)                their standing to bring the proceedings, ultimately conceded after they had filed their evidence and their submissions in support of their claimed standing.

41                  The Lansen applicants have correctly described two issues, and their outcomes, in (b) and (c) above.  I consider that those matters should be taken into account on the issue of costs.  I do not take into account the matters in (a).  It is common that issues are hard fought and often resolved only on fine balance.  However, if that particular submission be correct, it would follow that in each case the judge may be called upon to indicate how close was the balance between the competing contentions, or (it might be said) the degree of confidence of the judge in reaching the conclusions.  It would also follow that, in a “one issue” case which was finely balanced, there should or might be no order for costs or a marginal order for costs as a matter of routine.  In my view, even if it be accepted that the contentions were “close” (to use the word in the submission), that is not a reason why costs should not follow the event unless there were other relevant circumstances.

42                  Within the general discretion to award costs, a successful party who has failed on certain issues may be deprived of the costs of those issues, and be ordered to pay the costs of the other party in relation to them:  Ruddock at [11]; Cretazzo v Lombardi (1975) 13 SASR 4 at 16.  It should be noted that Jacobs J in that case, also at 16, said that ordering costs on the basis of the resolution of particular issues should be undertaken only with caution.  It is clear that it does not routinely follow from the resolution of an issue in a proceeding adversely to the successful party that the general rule as to costs should not apply.  That is a matter to be determined in all the circumstances.

43                  I accept that both the Minister and MRM conducted the proceeding in a reasonable and efficient manner.  It was not unreasonable for them to have resisted the claim that the Minister had failed to comply with s 134(4)(a) of the EPBC Act and so failed to have regard to a relevant consideration in reaching the decision.  The reasonableness of a party in the general conduct of a proceeding, and in disputing particular issues, is a relevant factor in resolving issues as to costs:  Keddie v Foxall [1955] VR 320 at 324, although the need for demonstrated unreasonableness by a party is not a necessary criterion for awarding costs to be reduced for that party failing on a particular issue or issues:  Verna Trading Pty ltd v New India Assurance Co Ltd [1999] 1 VR 129 at 154.  The discretion is not fettered by particular rules.  Hence, reasonableness overall or in relation to a particular issue does not of itself protect a party, unsuccessful on an issue, from the outcome on that issue somehow being reflected in the costs order.  The Lansen applicants have elsewhere made, and I have rejected, what would otherwise be the corollary of that proposition, because they say that they acted reasonably in raising the issues on which they ultimately did not succeed.

44                  Although the standing of the Lansen applicants was acknowledged shortly before the hearing, in my view the position of those applicants as native title claimants under the Native Title Act 1993 (Cth) and/or as representatives of groups who had a real interest in the proposed mine development and its potential upstream and downstream consequences by reason of grants under the ALR Act in respect of areas through which the McArthur River ran was readily apparent.  They nevertheless prepared substantial material to demonstrate their standing.  Neither the Minister nor MRM was likely to have been unable to ascertain readily their status in relation to lands adjacent to the mine or to the McArthur River, at least soon after the proceeding was begun.  In my view, it is appropriate to reflect that ultimately acknowledged outcome on that contested issue (to the commencement of the trial, or just before it) in the costs order.

45                  If it were standing alone, I would not reduce the costs of the Minister or of MRM by reason of the Lansen applicants having succeeded on the issue concerning the Minister’s contravention of s 134(4)(a).  It absorbed only a small part of the hearing and the evidence was in short compass.  Having taken the step of planning to adjust the allowed costs for one issue, however, I propose to make a minor reduction in the costs to be allowed to the Minister and MRM to recognise that they did not succeed on that issue.

46                  In my judgment, an appropriate reduction of the costs of each of the Minister and of MRM is a more sensible and practical outcome than awarding the Lansen applicants costs of those issues.  There is no science to the amount of the appropriate reduction.  I think that the costs of each which I would otherwise order should be reduced by 10 per cent.

(4)        The part played by MRM

47                  The Lansen applicants accept that the Minister and MRM were each entitled to participate in the proceedings.  They were right to do so.  They were joined as respondents.  The decision of the Minister was under attack.  The decision was one favourable to MRM, and it had obvious and good reasons to defend it; its part in the provision of information upon which the Minister’s decision was made was a very significant one, and the attack upon the decision included criticism of the adequacy of the information provided by MRM as well as the correctness of the procedures by which it was gathered.

48                  However, the Lansen applicants say that MRM overstepped its proper role and so it incurred costs on work which duplicated the work of the Minister, rather than simply adopting and supplementing the work of the Minister.  As the Minister’s decision was the target of their attack, they contend that the Minister was the appropriate principal contradictor.  They add, as was clearly the case, that the Minister took an active and extensive role in defending the proceedings.

49                  As noted, the approval process involved MRM’s actions as well as those of the Minister.  Moreover, as the economic interests of MRM very obviously potentially very significantly exposed by the claim, if successful, MRM had good reason to ensure those interests were properly protected.

50                  The Lansen applicants have identified, by reference to a table annexed to their written submissions, many issues upon which the Minister made careful and thorough submissions and upon which then MRM also made submissions beyond adopting, as relevant, those of the Minister.  The response of MRM is that it adopted the Minister’s submissions where appropriate, and only supplemented those submissions or made submissions on additional matters as it considered necessary.

51                  Having considered all that material, I am not critical of the role played by MRM in this proceeding.  I do not think that, in protecting its own interests, it over-stepped the line of adopting as appropriate the Minister’s position and then advancing additional material where that was appropriate. 

CONCLUSION AND ORDERS

52                  In my judgment, for the reasons given, the proper exercise of the discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) is to award the Minister and MRM some, but not all, of their costs of the proceeding.

53                  I have endeavoured to reflect my general assessment of the extent to which the proceeding concerned “public interest” issues as I have discussed them above and the extent to which it concerned other issues arising under the EPBC Act.  My view is that, in the circumstances, it would be appropriate to order the Lansen applicants to pay 35 per cent of the taxed costs of the Minister and of MRM of the proceeding.  I also allow a further reduction from the full costs of 10 per cent to reflect the outcome or particular issues, in particular that concerning the Lansen Applicants standing.

54                  Accordingly, I order that the Lansen applicants pay to the Minister and to MRM 25 per cent of each of their costs of the proceeding to be taxed.  As I earlier indicated, those taxed costs should exclude the costs of and incidental to the Lansen applicants’ notice of motion of 29 April 2008.

Associate:

Dated:         5 September 2008