FEDERAL COURT OF AUSTRALIA

Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 70 per cent of the costs of the first respondent and 40 per cent of the costs of the second respondent, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    On 29 August 2016 the Court dismissed the applicant’s amended originating application for judicial review (Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042 (ACF (No 1)). The parties subsequently took advantage of the opportunity to provide brief written submissions on costs. These reasons relate to that subject (the abbreviations used in ACF (No 1) are also used here).

The parties’ submissions as to costs summarised

2    The primary position of the applicant (ACF) was that there should be no order as to costs. The Court was urged to apply Heerey J’s reasoning for making a similar order in Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; 165 FCR 211 (Blue Wedges) at [68]-[75] and that of Besanko J in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 3) [2012] FCA 744 (Buzzacott).

3    In the alternative, the ACF submitted that the Court’s discretion as to costs should be exercised as in the Full Court’s decision in Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19; 101 ALD 1 (Wilderness Society), such that the ACF pay 70 per cent of the Minister’s costs and 40 percent of Adani’s costs.

4    The ACF submitted that relevant factors to be considered in the exercise of the Court’s discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) included:

(a)    although it was the unsuccessful party, its motivation was to ensure obedience to environmental law and preservation of an important part of the environment;

(b)    a significant number of members of the public share the ACF’s view;

(c)    the ACF sought no financial gain from the litigation;

(d)    the basis of the ACF’s judicial review challenge was arguable;

(e)    there is a public interest in the Minister’s approval decision itself, and equally in whether it was reached according to law;

(f)    the judicial review challenge raised novel questions of general importance and some difficulty as to the approval process under the EPBC Act; and

(g)    there was no unreasonable delay in the ACF bringing the application.

5    The ACF also drew attention to the fact that s 487(3) of the EPBC Act conferred standing on it to bring the proceedings.

6    In support of the suggested relevance of the protection of the Reef being a matter of “great public concern” and that there was widespread support in the community for the ACF’s position, the ACF relied on an affidavit of its chief executive officer, Ms Kelly-Ann O’Shanassy, which established that the ACF has 340,000 supporters and that polling conducted by the ACF on 30 August 2016 showed that 86 per cent of those surveyed agreed that the Federal Government must make protecting the Reef “an absolute priority”.

7    The ACF highlighted the fact that the EPBC Act is “complex” legislation and submitted that its judicial review challenge raised “novel questions of general importance as to the approval process” under the EPBC Act.

8    In support of its alternative position and the suggested differential relating to the respondents’ respective costs, the ACF submitted that the Minister was the more appropriate contradictor in the proceeding and that Adani played a larger role than was necessary.

9    Both the Minister and Adani submitted that the usual rule as to costs should apply, namely that the unsuccessful party should bear the costs of the successful parties. The Minister submitted that there is no general rule that costs will not be awarded in a case raising matters of public interest (citing Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 at [13] per Heerey, Whitlam and North JJ). Further, he submitted that the usual order should not be displaced because either (a) the proceedings were not brought by the ACF for financial gain; or (b) the ACF was established to pursue matters which it considered to be in the public interest. The Minister disputed the contention that the proceedings required the Court to resolve novel and difficult questions of general importance. He submitted that this was reflected in the fact that the Court rejected the ACF’s judicial review grounds largely on the basis of well-established principles regarding the reading of statements of reasons of an administrative decision-maker.

10    Adani’s submissions were to similar effect to those of the Minister. It added that this was not a case where the ACF had nothing to gain because it was reasonable to infer that it benefitted in bringing the proceedings from increased media attention and donations.

Consideration

11    The relevant legal principles which guide the exercise of the Court’s broad discretion regarding costs in a judicial challenge in an environmental law context are helpfully set out by Besanko J in Buzzacott. His Honour analysed leading relevant decisions such as Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 (Ruddock v Vadarlis); Save the Ridge Inc v Commonwealth [2006] FCAFC 51; 230 ALR 411; Blue Wedges and Batt Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; 280 ALR 91. Some of the relevant principles may be summarised as follows:

    the fact that proceedings may be characterised as “public interest litigation” may be a factor which contributes to a conclusion of “special circumstances” to displace the normal rule that costs follow the event but, of itself, it is not sufficient to justify a departure;

    the fact that the unsuccessful applicant brought the litigation to ensure compliance with the law and not for the purpose of private gain is a relevant consideration;

    also relevant is the fact that a significant number of members of the public shared the unsuccessful applicant’s concerns, giving rise to a “public interest” in the outcome of the proceeding;

    also relevant is the fact that the applicant’s challenge was arguable and the litigation resolved significant issues about important legislation; and

    different weight may be given to relevant considerations relating to costs on an appeal as opposed to a proceeding at first instance, in the sense that clarification of the law and rule of law considerations may not, depending on the circumstances, have the same weight on an appeal.

12    As is evident from my earlier reasons for judgment, Adani’s proposed project is very substantial and it has generated considerable public interest. Some of that interest is reflected in earlier litigation relating to the project, including the proceeding in the Land Court of Queensland in Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48; proceeding in the Supreme Court of Queensland in Land Services of Coast and Country Inc v Chief Executive, Department of Environment and Heritage Protection (the judgment is apparently reserved) and previous proceedings in this Court, which included a judicial review challenge by the McKay Conservation Group which led to the Minister’s previous approval being set aside by consent on 4 August 2015 and the proceeding before Reeves J in Burragubba v State of Queensland [2016] FCA 984.

13    The survey results which are referred to in Ms O’Shanassy’s affidavit confirm that there is considerable public interest and public concern relating to the possible effects of climate change on the Reef. Judicial notice could also be taken of these matters.

14    It is also relevant that the ACF sought no financial gain from the litigation. I reject Adani’s contention that it should be inferred that the ACF benefitted from increased media attention and donations as a result of bringing the proceedings.

15    Turning now to consider the grounds raised by the ACF in its amended originating application for judicial review, as was noted in ACF (No 1) at [62] only three of the four grounds of judicial review were pressed. Ground 4, which related to whether the Minister had considered the impact of Adani’s proposal on the Black-throated Finch (a listed threatened species), was abandoned prior to the hearing. The costs thrown away is a relevant matter.

16    To the extent that the Minister and/or Adani submit that the remaining three grounds were not of general importance or difficulty, I respectfully disagree. Although the strength of those individual grounds varied, none was unarguable. Ground 2, which focused on the interaction between provisions such as ss 82 and 527E and the exercise of the Minister’s powers in ss 133 and 136 of the EPBC Act, raised some important and difficult issues of statutory construction. These issues are significant not only for Adani’s project but more generally for other actions to which the EPBC Act applies. Having said that, however, I do not consider that the points of law raised generally in this proceeding are of the level of complexity and novelty as those raised in cases such as Ruddock v Vadarlis.

17    Another important relevant consideration is that there was a degree of duplication in the submissions made both in writing and orally by the Minister and Adani, not only in the substantive proceeding but also in relation to the subject of costs. Adani was joined as a party to the proceeding by a consent order dated 17 November 2015. No orders were made at that time limiting its involvement in the proceeding or in relation to its costs. Adani had a clear interest in the proceeding not the least because the ACF sought to have the Minister’s approval decision quashed. Having said that, however, Adani retained both senior and junior counsel to appear for it, in circumstances where the Minister was also represented by senior and junior counsel. Adani fully participated in the proceeding and did not elect to adopt a secondary role to that of the Minister. This is reflected in the fact that Adani’s outline of written submissions in chief ran to some 29 pages and overlapped in many respects with those of the Minister (which totalled 21 pages). There was perhaps less overlap in the oral submissions which were made on behalf of the Minister and Adani but, overall, I consider that Adani played a larger role in the proceedings than was necessary. This is a factor which I consider affects the costs which should be recoverable by it. As the Full Court noted in Wilderness Society at [13], the extent to which those costs should be reduced is a matter of judgment or impression and is not susceptible to precise calculation.

Conclusion

18    Having regard to all these matters, as well as the other matters raised by the parties in their written submissions, I consider that the alternative position advanced by the ACF should be accepted. Accordingly, the ACF should pay 70 per cent of the Minister’s costs and 40 per cent of Adani’s costs.

Associate:

Dated:    8 September 2016