FEDERAL COURT OF AUSTRALIA

Triabunna Investments Pty Ltd v Minister for the Environment and Energy (No 2) [2018] FCA 598

ORDERS

THE COURT ORDERS THAT:

1.    The First and Second Applicants pay 85% of the First Respondent’s costs incurred after 13 September 2017 on a party and party basis, to be taxed if not agreed.

2.    The First and Second Applicants pay the Second Respondent’s costs on a party and party basis, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

KERR J:

1    On 12 April 2018 I published reasons for decision in Triabunna Investments Pty Ltd v Minister for the Environment and Energy [2018] FCA 486.

2    In those proceedings the Applicants (Triabunna Investments Pty Ltd, Spring Bay Mill Pty Ltd and the Bob Brown Foundation Inc., the First, Second and Third Applicants respectively) each failed to establish an entitlement to relief pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in respect of a decision made by a delegate of the Minister. The Applicants had submitted that the delegate’s decision in respect of a proposed action in Okehampton Bay, as had been referred to the Minister by the Second Respondent (Tassal) pursuant to s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), was invalid. The delegate had decided that the action was not a controlled action if taken in the particular manner specified.

3    In my reasons I expressed certain preliminary views as to what might be appropriate orders in respect of costs as follows:

208    Having regard to my conclusions, the Applicants fail to obtain the relief under the ADJR Act they have sought.

209    However the propositions advanced by the Applicants were not without arguable merit. Indeed, the Court records its gratitude to each of Mr Walters, Mr Kennett and Mr McElwaine who appeared as senior counsel for the respective parties. Each provided considerable assistance to the Court. That the Court may not have accepted a particular submission advanced by counsel on behalf of a party is no indication to the contrary.

210    I am mindful that the standing of the Third Applicant, the Bob Brown Foundation Inc., to bring these proceedings was accepted by the Minister and Tassal on the basis that it was an organisation whose objects specifically are directed towards protection of the environment. It, together with the First and Second Applicants, clearly went to considerable effort to provide relevant comment to the Minister during the referral process.

211    In my view it would be available to the Court to accept that in doing so and then challenging the Minister’s decision on arguable, although ultimately rejected, grounds the Third Applicant should be accepted to have met the conditions for the application of the Oshlack approach to costs in public interest litigation as discussed by Heerey J in Blue Wedges at [73] to [75] of his Honour’s reasons, citing Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

212    The Oshlack principle is not available in the instance of the First and Second Applicants. The positions of the First and Second Applicants are to be distinguished from the Third Applicant in that each not only contended that as members of the public they had an interest in these proceedings, but also that they had a private interest that should be vindicated. Having failed on both bases, there is no reason why costs orders should not be made against them to the degree established as appropriate having regard to the measure of success achieved by the parties which resisted the orders they sought.

213    Tassal prima facie is entitled to a costs order in its favour as against the First and Second Applicants for the whole of its costs on a party and party basis. Its submissions have been upheld on all grounds. However I discern nothing that would entitle Tassal to have its costs other than on the ordinary basis.

214    In respect of the First Respondent I am minded to order that the First and Second Applicants meet most but not all of the Minister’s costs on a party and party basis. Some discount is appropriate because, although the Applicants’ application for review has been dismissed, the Court has rejected the submissions advanced on the Minister’s behalf in order to reach that conclusion. As noted at [157], but for the Court having accepted the alternative basis advanced by Mr McElwaine for upholding the Minister’s decision, the Court, subject to discretionary considerations, may have granted the Applicants the relief they sought.

215    However any reduction should be modest having regard both to the substantive outcome and the Minister’s success on the other grounds. The prima facie position I reach is that the Minister should have 85% of his costs met by the First and Second Applicants on a party and party basis.

216    Because the parties have not had any opportunity to examine the Court’s reasons I would give them 7 days from the date of their publication for any party to file and serve any written submissions on costs limited to no more than 3 pages should they be advised to contend for orders other as proposed in these reasons. In such an event, any other party will have a further 7 days to file and serve responsive submissions limited to 3 pages. The Court will consider any such submissions and make its final decision on the papers.

217    If no submissions are received seeking a variation to the orders the Court has indicatively proposed the Court will make final orders in those terms.

4    The respective parties each filed submissions pursuant to the leave granted to them.

5    Neither the First nor the Second Respondent submits that costs orders should be made on a different basis.

6    The Applicants submit to the same effect subject to three qualifications. They submit (a) that the Minister (the First Respondent) should pay the costs of the Applicants up to and including 12 September 2017; (b) the Minister and Tassal (the Second Respondent) should pay 50% of the Applicants’ costs of an interlocutory hearing on 14 December 2017; and (c) that Tassal should pay the costs of the Applicants and the Minister in connection with the Applicants’ interlocutory application of 18 December 2017, including the costs of the hearing on 21 December 2017.

7    Having regard to their respective submissions I take it to be uncontentious, subject to those qualifications, that the parties are agreed that the orders I indicated in my preliminary view would be appropriate to make.

8    I therefore turn to the three specific variations proposed by the Applicants. They submit as follows:

Costs incurred up to and including 13 September 2017

4.    The affidavit of Roland Browne filed on 7 September 2017 and documents filed in the proceeding set out the following chronology up to and including 13 September 2017 when the Minister provided written reasons:

a.    1 August 2017: The Minister made a decision under s 75 of the EPBC Act

b.    2 August 2017: Pursuant to s 13 of the ADJR Act, the Applicants applied for reasons (copy at annexure RAB3)

c.    29 August 2017:

i.    By email from the Applicants’ solicitor (copy at annexure RAB5), the Applicants sought confirmation that the reasons would be provided within the 28 day period provided for in s 13(2) of the ADJR Act;

ii.    By reply email, the Department advised that “We’re working to get [the reasons] to you as soon as we can. We are unlikely to make statutory time-frame, but hope to get it to you within around a week” (copy at annexure RAB6).

d.    30 August 2017: The 28 day period for the Minister to provide reasons expired

e.    7 September 2017: The Applicants commenced proceeding TAD17 of 2017 seeking, among other things, an order that the Minister provide reasons. A case management conference was listed for 13 September 2017

f.    12 September 2017: By email from the Minister’s solicitors to Justice Middleton’s associate, the Minister advised that reasons would be provided by 15 September 2017 and requesting consent orders

g.    12 September 2017: Justice Middleton made orders adjourning the case management conference scheduled for 13 September 2017 and reserving costs.

h.    13 September 2017: The Minister provided written reasons dated 13 September 2017.

5.    The Applicants commenced proceeding TAD17 of 2017 by originating application dated 7 September 2017 seeking written reasons that had not been provided within the 28 day period required by the ADJR Act. They had allowed a further week. Accordingly, it is submitted that the Minister should pay costs up to and including 13 September 2017 being the date on which the Minister provided reasons.

Costs of the hearing on 14 December 2017

6.    By order dated 13 November 2017, the Court granted leave for Tassal to file and serve evidence by 29 November 2017.

7.    By letter to Justice Kerr’s associate dated 8 December 2017, and after the Applicants had filed their submissions in the case noting the absence of evidence foreshadowed by Tassal, Tassal sought orders varying that timetable. Tassal’s application was for an indulgence.

8.    Tassal’s application for orders varying that timetable was listed for hearing on 14 December 2017.

9.    By email dated 13 December 2017 from the Minister’s solicitors to Justice Kerr’s associate, the Minister requested that the February 2018 trial date be re-listed to provide the Minister with time to brief alternate senior counsel for the trial.

10.    At the hearing on 14 December 2017, the Court made orders generally in the terms sought by the Minister and Tassal. In the circumstances, it is submitted that the Minister and Tassal should each pay 50% of the Applicants’ costs of the hearing on 14 December 2017.

Costs of the Applicants’ interlocutory application for orders that Tassal produce documents referred to in Mr Asman’s affidavit

11.    By interlocutory application dated 18 December 2017, the Applicants sought orders that Tassal discover the documents referred to in the affidavit of Mr Asman filed on behalf of Tassal.

12.    In response, Tassal sought an extensive suppression order.

13.    The Applicants’ interlocutory application was the only matter before the Court at the case management conference on 21 December 2017.

14.    By order dated 21 December 2017, the Court (by consent) ordered that Tassal produce the documents sought by the Applicants. Accordingly, the Applicants’ interlocutory application was successful and it is submitted that Tassal should pay the costs of the Applicants’ interlocutory application dated 18 December 2017 including the costs of the hearing on 21 December 2017.

9    On behalf of the Minister it is submitted that ordinarily a successful litigant is entitled to an award of costs in its favour and that a successful party ought not be made to pay the costs of the other side, unless, as an exception to that principle, such an order is justified by that party’s conduct. The Minister submits that his conduct in these proceedings does not justify an order that he pay any of the Applicants’ costs.

10    In respect of the bases asserted by the Applicants as giving rise to a specific entitlement to the contrary the Minister submits as follows:

Cost incurred up to and including 13 September 2017

7.    The applicants contend that the first respondent should pay the applicants’, and the second respondent’s, costs incurred up to and including 13 September 2017, which was the date on which the reasons were provided to the applicant. That is on the basis that:

a.    the applicants sought a statement of reasons for the decision the subject of the proceeding under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act);

b.    the first respondent did not provide the applicants with a statement of reasons within 28 days of the applicants’ request in accordance with s 13(2) of the ADJR Act; and

c.    the applicants commenced the proceeding seeking written reasons.

8.    While the first respondent acknowledges that the reasons were not provided within the statutory timefrarne, he contends that the Court should decline to make the costs order sought for the following reasons:

a.    the commencement of the proceeding was a decision made by the applicants in circumstances where it was clear to the applicants that the first respondent would provide reasons for its decision to the applicants and where the provision of those reasons was imminent. In particular, the first respondent highlights the following:

i.    the first respondent’s Department acknowledged in correspondence to the applicants’ representative dated 2 August and 29 August respectively that it would provide the applicants with a statement of reasons (see Annexures marked “RAB4” and “RAB6” of the affidavit of Roland Alexander Browne affirmed 7 September 2017 (“Browne Affidavit”)). Thus, the position adopted by first respondent, and communicated to the applicants (before they commenced the proceeding), was always that it would provide the applicants with a statement of reasons;

ii.    the first respondent’s Department informed the applicants before the expiration of the statutory timeframe (on 29 August), that it was not going to be able to provide the statement of reasons within that timeframe, but anticipated furnishing reasons to the applicants within “around” a week (see RAB6 of the Browne Affidavit);

iii.    notwithstanding that correspondence from the first respondent's Department, the applicants commenced the proceeding (on 7 September (only seven days after the expiration of the statutory timeframe)) without notice or further enquiry about the progress of the statement of reasons. The statement of reasons was provided to the applicants on 13 September (only four business days after the proceeding was commenced);

b.    the costs order proposed by the applicants is inappropriate because it does not isolate the costs incurred in seeking reasons. The proceeding commenced by the applicants on 7 September 2017 was not limited to seeking a statement of reasons but also sought substantive review of the decision the subject of the statement of reasons (on grounds which the applicants ultimately abandoned in the course of the proceeding, and which led to costs being unnecessarily incurred by the first respondent). To raise substantive review grounds in advance of receipt of the statement of reasons, and to join the second respondent at that stage, was a strategic decision made by the applicants (and not the product of any conduct of the Minister). Furthermore, it would be expected that the costs of making a bare application for reasons would be limited and confined, and accordingly, most of the costs incurred by the applicants would be expected to be incurred in preparing its substantive case (which it subsequently abandoned);

c.    most of the costs incurred by both the applicants and second respondent prior and up to 13 September 2017 are costs which would have been incurred in any event in the judicial review proceedings that were prosecuted. By way of example, the costs incurred in briefing Counsel, Counsel reading into the matter, the filing fee and the preparation of the supporting affidavit are all costs which would be incurred in any judicial review proceedings. Put another way, it is not clear that the first respondent’s conduct in not providing reasons to applicants within the statutory timeframe contributed to the applicants (or second respondent) incurring additional costs given that, in this proceeding, once the reasons were given to the applicants, they persisted in seeking judicial review of the decision.

Costs of the hearing on 14 December 2017

9.    The applicants contend that the respondents should, in equal share, pay the costs of the applicants of the case management hearing of 14 December 2017 because, at that hearing, the Court made orders generally in the terms sought by the respondents.

10.    There does not appear to be a proper basis upon which the Court should exercise its discretion on costs in relation to the hearing on 14 December 2017.

11.    In any event, the record of the Court will show that his Honour, on 12 December 2017, listed the case management conference following an email from the applicants to the Court in which they did not consent to (or oppose) orders sought by the second respondent. The proceeding was listed for a case management conference before the first respondent first raised the difficulty with the then final hearing dates (which occurred on 13 December 2017). The question of shifting the final hearing dates was then conveniently and efficiently resolved (by consent) at the case management conference on 14 December.

(Footnotes omitted.)

11    Specifically as to the orders the Applicants contend for, Tassal submits:

3.    Secondly, there is no justification for a proportional order of the hearing, which occurred on 14 December 2017. Whilst it is true that the second respondent sought an indulgence, by variation to the timetable orders, the applicants insisted upon an affidavit from its solicitor rather than a simple assurance from him as to the facts. In the not too distant past, litigation was conducted on the basis that solicitors would ordinarily accept the word of an opposing solicitor without verification upon affidavit. The fact that the solicitor for the applicants would not, is evidence of an unreasonable approach to this litigation, despite the statutory obligation set out at s’s. 37M and 37N of the Federal Court of Australia Act 1976.

4.    The determination of an interlocutory application of the second respondent, at the hearing on 21 December 2017, was made unduly complex and lengthy by the fact that the applicants opposed, in general terms, the making of non-publication orders but, then during the course of the day, consented to them in modified form. The applicant’s solicitor was put on notice, in correspondence, that the second respondent did not oppose production of the documents requested if the commercial sensitivity and confidentiality of the content could be protected. Ultimately, this is the outcome it achieved.

12    Tassal otherwise adopted the Minister’s position that the orders as proposed by the Applicants should not be made. It submits that the costs involved were minor in the context of the litigation, and that what the Applicants seek is overly complex, unjustified and unnecessary having regard to the way the matter was argued at trial.

Consideration

13    I accept that some additional costs must have been incurred by the Applicants in consequence of the delegate’s failure to provide reasons within the period required by law – and outside the further period of “about a week” that had been advised to Mr Browne. However I also accept the Minister’s submission that the orders proposed by the Applicants do not isolate the specific costs the Applicants incurred by that reason. Nor am I satisfied that the conduct of the Minister, while derelict in meeting the statutory time frame permitted for the provision of written reasons, was so egregious as to warrant the Court ordering that the Minister pay the Applicants’ costs up to and until 13 September 2017. However, I reject the Minister’s submissions that the Applicants acted unreasonably in seeking orders pursuant to s 13 of the ADJR Act. The substantive relief the Applicants intended to seek could not be properly pursued in their absence and the Applicants, having agreed to one extension of time, without written reasons having been provided, were not required to further wait on the convenience of the decision maker. The fact that written reasons were produced only four days after those proceedings were commenced does not lead me to conclude that they had been inappropriately begun. Indeed, their provision so promptly thereafter may have been prompted by those proceedings. Some discount therefore is appropriate against the recoveries the Minister will otherwise be entitled to. I am satisfied that justice would be done as between those parties if the Court is simply to confine the Minister’s entitlement to 85% of his costs incurred beyond that date.

14    As to the other two other variations sought by the Applicants, I accept the submissions of both the Minister and Tassal that those orders are not justified. In the context of this litigation, each involved the costs of a minor procedural skirmish of a kind inherent in any significant proceeding. Having regard to the circumstances in which those disputes arose and were resolved, in neither instance was the position taken by the Applicants wholly vindicated. It would not be appropriate for the costs of those events to be isolated as specific instances warranting a variation to the more general orders the Court foreshadowed it was minded to make, and which the Applicants accept it otherwise should make.

15    I will make orders accordingly conforming to these reasons.

Associate:

Dated:    1 May 2018