FEDERAL COURT OF AUSTRALIA

Huon Aquaculture Group Limited v Minister for the Environment (No 2) [2018] FCA 1938

ORDERS

THE COURT ORDERS THAT:

1.    Order 3 of the 6 July 2018 Orders be vacated.

2.    The Applicants pay the Third Respondent’s costs up to and including 1 November 2017 as agreed or assessed.

3.    Order 2 does not operate to vary previous costs orders made in this application prior to 6 July 2018.

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

REASONS FOR JUDGMENT

KERR J:

1    On 6 July 2018 the Applicants’ (collectively, Huon) application for judicial review of a decision of the Minister for the Environment (the Minister) was dismissed: see Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011 (HAG Ltd). I made the following orders:

 1.    The application be dismissed.

2.    The Applicants pay the Fourth and Fifth Respondents’ costs as agreed or assessed.

3.    The Applicants pay the Third Respondent’s costs up to and including 27 April 2017 as agreed or assessed.

4.     The Third Respondent have leave to file and serve an application to vary Order 3, together with submissions limited to 5 pages, no later than 4.00 pm on Friday 3 August 2018.

5.     The Applicants have leave to file and serve responsive submissions, limited to 5 pages, no later than 4.00 pm on Friday 31 August 2018.

6.    The Third Respondent have leave to file and serve reply submissions, limited to 2 pages, no later than 4.00 pm on Friday 14 September 2018.

7.     The Court will determine any application made pursuant to Order 4 on the papers.

2    By interlocutory application dated 3 August 2018, the Minister (the Third Respondent) seeks the following orders:

1.    Order 3 of the orders made by Kerr J on 6 July 2018 be varied to delete the words “up to and including 27 April 2017”.

2.    The Applicants pay the Third Respondent’s costs of this interlocutory application as agreed or assessed.

thE bACKGROUND

3    Huon is one of three fish farmers operating in Macquarie Harbour. It and the Fourth and Fifth Respondents (Petuna Aquaculture Pty Ltd (Petuna) and Tassal Operations Pty Ltd (Tassal) respectively) commenced aquaculture operations in Macquarie Harbour prior to the passage of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). In consequence of s 43B of the EPBC Act, existing fish farming was a lawful continuation of use of the harbour. However, any significant expansion of their existing use was not exempt from the operation of the EPBC Act: see s 43B(3)(a).

4    At a time after the coming into effect of the EPBC Act all of the fish farmers (including Huon) came to the view that their fish farming operations in Macquarie Harbour could and should be expanded. The Tasmanian agency with responsibility for regulating fish farming shared that opinion. On 29 May 2012 Mr Kim Evans, Secretary of the Department of Primary Industries, Parks, Water and Environment (DPIPWE) referred the proposed expansion to the Minister for approval.

5    On 3 October 2012 the Minister made or purported to make a decision that the proposed action was not a controlled action if undertaken in a particular manner. A notice was issued pursuant to s 77 of the EPBC Act (the s 77 Notice), advising that the expansion would not be a controlled action if undertaken in a particular manner: see HAG Ltd at [69]. Pursuant to manner requirement 2(f), “the total biomass held across all lease areas must not exceed 52.5 percent of the modelled maximum sustainable biomass until limit levels are reviewed in mid-2013, and must not exceed any such altered levels as may be identified thereafter by the Tasmanian Government” (defined terms in original).

6    Following the Minister’s decision, each of Huon, Petuna and Tassal expanded their operations but Tassal moved more rapidly than both other companies. Tassal proceeded on the basis that the interim cap on total biomass to be held across all leases in Macquarie Harbour referred to in manner requirement 2(f) had fallen away after mid 2013 in the absence of the Tasmanian Government having identified an altered biomass limit following its receipt of an Industry Report. On that understanding, Tassal unilaterally increased its smolt input to 100% of its allocated quota.

7    Tassal’s front-running in that regard prompted Petuna and Huon in August 2014 jointly to express concerns that Tassal had stocked its marine farm leases to a level that had the potential to create significant environmental harm and impact fish health. Notwithstanding their representations, DPIPWE did not immediately move to implement a new biomass limit. Instead, Huon and Petuna were advised that the Commonwealth Department of Environment had been informed that the biomass limit had lapsed. Subsequent representations by the two companies to the Commonwealth Parliamentary Secretary to the Minister failed to persuade the Commonwealth to step in. Huon remained concerned about potential environmental damage but took no legal action to challenge the position that prevailed for an additional two and a half years.

8    When these proceedings were commenced on 6 February 2017 Huon’s pleadings were premised on its then understanding that DPIPWE had been the proponent of the expansion of fish farming in Macquarie Harbour and that the Secretary of DPIPWE (then the First Respondent) and/or the Director of the Environment Protection Authority (then the Second Respondent) were the person(s) that had taken subsequent action to expand fish farming in Macquarie Harbour. Orders were sought inter alia “restraining the First Respondent and/or Second Respondent by itself, its servants, agents or otherwise howsoever from engaging in conduct in contravention of the Act.” The Minister was the Third Respondent. At that time, the invalidity of the Minister’s decision was pleaded in the alternative.

9    Given that their rights and interests as fellow lease holders and marine farmers in Macquarie Harbour plainly might be affected by the outcome of these proceedings, Petuna and Tassal unsurprisingly applied to intervene with all rights and liabilities of a party. The Court held they were entitled to be so joined. Orders were made accordingly on 27 April 2017.

10    Huon later was permitted to amend its pleadings on a number of occasions subject to costs thrown away. Huon’s pleadings in their final form accepted that Huon, Petuna and Tassal were the persons who had undertaken the action of expanding marine farming operations in Macquarie Harbour. Huon pleaded that the Minister’s decision was invalid for reasons including uncertainty, lack of finality, delegation of substantive powers, and unreasonableness. The final recasting of Huon’s pleadings sought no orders against the First or Second Respondents. Huon further abandoned seeking to prove that the expansion of fish farming in Macquarie Harbour, as approved by the Minister’s decision, had caused actual environmental damage.

11    In those premises the First and Second Respondents applied to cease to be parties. On 9 February 2017 the Court granted their interlocutory application: Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2018] FCA 89.

12    A more comprehensive summary of the background is set out in HAG Ltd at [1]-[123] and need not be repeated. I incorporate those paragraphs by reference.

13    Huon’s application was heard on 19-26 March 2018. Judgment was delivered on 6 July 2018.

14    The Court was persuaded that it was proper for it to accept the submission advanced by the Minister and joined in by Petuna and Tassal that the relief sought by Huon (a declaration that the decision of the Minister made on 3 October 2012 that the action referred to him was not a controlled action for the purposes of the EPBC Act provided it is undertaken in the manner set out in the s 77 Notice was invalid) must be refused on discretionary grounds, even on the assumption that Huon might otherwise have succeeded on the grounds it had advanced. In its reasons, the Court addressed submissions that had been made in respect of the Hardiman principle as follows:

276    The Court has come to that conclusion notwithstanding the question posed by Mr Galasso as to whether the submissions advanced by the Minister fell within the Hardiman principle.

277    In R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 (Hardiman) at 35-36 the High Court of Australia (Gibbs, Stephen, Mason, Aickin and Wilson JJ) unanimously took issue with the role played by the then Australian Broadcasting Tribunal in proceedings in which prerogative writs were being sought against it. The court stated:

In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.

278    Mr Galasso questioned whether, in advancing submissions that relief should be refused on discretionary grounds and taking an active positon effectively in support of Petuna and Tassal, the Minister was acting inconsistently with the High Court’s disapprobation of a regulator taking other than a neutral and facilitative role.

279    On behalf of the Minister, Mr Kennett indicated that that question had been thought about. The Minister did not dispute that Huon had arguable grounds for contending the decision was invalid. The Minister had taken a neutral position on that question – he had made no submissions one way or the other. The Minister did not intend to descend into the factual fray between the operators.

280    However the Minister was entitled to be heard on whether the Court should exercise its discretion to grant relief. The Minister had an interest in the efficient operation of the Act he administered, including the finality and reliability of decisions. A decision challenged more than four years after it was made was one that excited concern in that respect.

281    Mr Kennett further submitted that the Hardiman principle was really directed to tribunals and bodies which had to adjudicate what are, in effect, inter partes disputes, not a Minister dealing with an application of this kind (transcript p 349 lines 17-23).

282    The Minister taking the position he did with respect to discretion would not give rise to difficulties if the Court ultimately made the declaration Huon sought:

MR KENNETT: Were it remitted, it would be – and if the existing referral is persisted with, it has three proponents, all of whom are in the room, and all of whom are equally proponents. Anything bad we might say about Huon wouldn’t give rise to any concern, we would say, about the Minister’s ability to deal with that.

(transcript p 349 lines 26-29)

283    Be that as it may, the law is clear that the Minister is not prohibited by the Hardiman principle, assuming it applies, from taking the course pursued in these proceedings. Any disapprobation, if warranted, is to be expressed in the costs orders made by the Court rather than by the Court declining to have regard to the propositions advanced by Mr Kennett on the Minister’s behalf. In any event, the Minister’s submissions were later adopted by Petuna and Tassal. There is no basis for the Court to do other than address them on their merits.

…

287    For the above reasons the Court dismisses the application brought by Huon.

288    The Applicants are to pay the Fourth and Fifth Respondents’ (Petuna and Tassal) costs as agreed or assessed.

289    Mr Galasso having raised the Hardiman principle, the Court is persuaded it ought not to make an immediately operating identical order for costs in favour of the Minister in the absence of submissions.

290    I should make clear that until Mr Galasso raised the Hardiman question during the hearing, the Court gave no attention to whether the Minister’s taking that approach should be questioned.

291    I make no criticism of Mr Kennett or previous counsel for the Minister, who at all stages have acted entirely consistently with their duties to the Court.

292    Neither the Minister nor Huon have had the opportunity to be heard in relation to whether the Court should apply the Hardiman principle in relation to costs. The very limited research I have undertaken suggests the scope and application of the Hardiman principle is contentious.

293    For that reason I would make an order that Huon pay the Minister’s costs as agreed or assessed up to and including 27 April 2017, when Petuna and Tassal were joined to these proceedings. At that point, if I understand Mr Galasso’s submission correctly, those parties became appropriate contradictors and the Minister should have become a submitting party.

294    I will give leave to the Minister to file and serve, within 28 days of the publication of these reasons, an application to vary the costs order the Court has made supported by submissions limited to 5 pages. I would give leave to Huon to file and serve, within a further 28 days, responsive submissions limited to 5 pages and to the Minister, within a further 14 days, to file and serve any reply submissions limited to 2 pages. The Court will determine any application so made on the papers. It will of course be open to the respective parties to settle the costs issue on agreed terms, without recourse to that procedure.

The Hardiman principle

15    As noted in HAG Ltd at [277], the principle articulated in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 (Hardiman) is in the following terms (Gibbs, Stephen, Mason, Aickin and Wilson JJ at 35-36):

… In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be limited to submissions going to the powers and procedures of the Tribunal.

16    The disapproval of the High Court was given effect to by refusing to award the Tribunal its costs.

17    However it is not in every instance that an independent decision-maker to whom a matter might be remitted by a court for impartial reconsideration ought to refrain from playing a substantive role in such judicial review proceedings. Thus in Fagan v Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666 (Fagan), Brennan J held that the principle would not necessarily apply to proceedings arising out of a dispute that was not inter partes if the Attorney-General did not intervene to represent the public interest and there was no appropriate contradictor (at 681). In such circumstances, his Honour held that “it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant’s case.” His Honour noted that, although the Crimes Compensation Tribunal was bound to act impartially, its role as guardian of public money was “to answer the proper claims for compensation” and as such, it was appropriate that the Tribunal appear to respond substantially to the application.

18    Similarly in Ogawa v Australian Information Commissioner [2014] FCA 229, Greenwood J reasoned:

22    The applicant contends that the first respondent ought to be restrained from putting on submissions on the substantive matters on the basis of the observations of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. Normally, when a decision of an administrative decision making tribunal is subject to challenge on grounds of jurisdictional error under s 39B of the Judiciary Act or under one of the grounds contained in the ADJR Act, the tribunal submits to any order the Court might make. Such a tribunal does not normally become a contradictor in the proceeding to agitate in favour of the legality of its own decision making. The first respondent accepts that this principle extends to administrative decision makers generally and not just administrative tribunals, although the principle is said not to have been applied uniformly (see Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) (2004) 136 FCR 338; TXU Electricity Ltd v Office of the Regulator General (2001) 3 VR 93).

23    The first respondent contends, correctly in my view that a number of authorities recognise that the application of the Hardiman principle requires some adapted flexibility to the particular circumstances which present themselves to the Court for consideration.

24    For example, where there is no active contradictor to frame propositions concerning the legality of the decision making, the Court might well elect to entertain submissions from the decision maker. Sometimes, the tribunal in question is exercising a jurisdiction to review a decision of a Minister’s delegate and the tribunal in that role exercises all of the powers conferred upon the Minister under the Act. Whilst the tribunal might be joined in the proceedings, the principal respondent is the Minister under the relevant Act who acts as a contradictor. In those circumstances, the tribunal makes a submitting appearance only and takes no active role in the proceedings. A similar position prevails when the Attorney General elects to intervene and becomes the contradictor.

25    The first respondent correctly identifies that the proceedings before the decision maker in this case were not inter parties proceedings and the Attorney General has not elected to represent the public interest on the question of the legality of the first respondent’s decision making. Since there is no person present before the Court who can otherwise address the legality of the first respondent’s decision making (in addressing the public interest in determining the legality of that decision making) it is desirable that submissions be entertained from the first respondent in assisting the Court to determine the legality of the decision making under challenge (see Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954).

19    His Honour determined that the interests of justice in that case were best served by receiving submissions from the Commissioner.

20    In TXU Electricity Limited v Office of the Regulator General [2001] VSC 4; 3 VR 93 (TXU), Ashley J undertook a thorough analysis of the Hardiman principle. His Honour noted (at [18]) that although the precise limits of the principle were unclear, it would at least apply:

(1)    to cases in which application is made for judicial review of an administrative decision of a tribunal where the consequence of success will or may be remission of the matter for reconsideration by the tribunal; and

(2)    where the decision of the tribunal involves it undertaking an adjudicatory function in a proceeding which is in substance (whether or not the relevant legislation requires it) inter partes; and

(3)    where the tribunal is bound to observe one or both of the rules of procedural fairness.

21    His Honour observed at [19] that the rationale underpinning the principle was “the avoidance of the fact (and perhaps the appearance) of partiality of a body which may be called upon to redetermine a matter.”

22    Relevantly, Ashley J had regard to the scope of the principle’s application with respect to the decision-maker:

27    Light may be cast upon the breadth of the principle by considering what is a “tribunal” for Hardiman purposes. Plainly the word includes what have been called “substitute courts”: the Australian Broadcasting Tribunal, credit tribunals and small claims tribunals, for example.

…

33    I next doubt that decisive light is case on the meaning of the word “tribunal” where used in Hardiman by considering whether a particular decision-maker was bound to accord procedural fairness to an applicant for judicial review. It may be said, I consider, that if the obligation to accord such fairness was absent (it arises where a public body has the capacity, in making an administrative decision, to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations) then the decision-maker should not be considered a “tribunal”. But in light of the breadth of operation of the obligation I would not accept the contrary.

…

42    All in all, the context in which the Hardiman observations were made suggests that the High Court was there giving its imprimatur to the course previously adopted in industrial and court matters, and was probably indicating that in proceedings for judicial review the same course should at least be adopted by decision-makers before whom hearings which were in substance inter partes were conducted. In such cases there would be a natural contradictor. Moreover, there might reasonably be as much concern about partiality or the appearance of partiality if a matter was to be remitted to such a decision - maker as there might be in the case of a court or industrial tribunal to which there was to be remitter.

43    It cannot be said, in my opinion, that Hardiman plainly extended the then–existing regime to decision-makers in “one party” cases. But there was and is good reason for giving the principle operation in at least some cases of that kind. The cases in which the principle sensibly applies are those in which:

•    the decision maker is bound to apply the rules of procedural fairness; and

•    the application for prerogative relief raises the prospect of remitter; and

•    there is a public interest as would justify the intervention of the Attorney General.

44    Even so, the dictum of Brennan J in Fagan makes it clear that the principle should not be applied if the Attorney General does not intervene and no “law officer” or “public official” is heard by the court. In the absence of such intervention the decision maker in such a case should characteristically assist the court, particularly upon the question of power, and in doing so adopt as little of the role of partisan as is possible.

45    I said a moment ago that there was and remains good reason for giving the Hardiman principle operation in certain “one party” cases. The reason is this: in such a case, where there is prospect of remitter, a concern as to the fact or appearance of partiality could arise. It would not be a concern that the decision maker was or appeared to be favourably disposed to one of two parties; but rather that the decision-maker was or appeared to be unfavourably disposed to the prosecutor.

46    The fact that decision-makers in “one party” cases have characteristically appeared in appellate proceedings does not tell against there being good reason why such decision makers should not appear in certain proceedings for prerogative relief. As I pointed out, most often statute has prescribed a role for the decision-maker on an appeal.

23    His Honour’s reasoning that the Hardiman principle applies to “one party” cases (subject to the carve out required by Fagan and that a Tribunal is entitled to defend itself in respect of allegations made against it) was applied in this Court by Sackville J in Community Television Sydney Limited v Australian Broadcasting Authority (No 2) [2004] FCA 614; 136 FCR 338 (Community Television). I see no reason not to apply those cases. I also take it as settled law that the Hardiman principle should guide a tribunal (or quasi-judicial decision-maker) in determining its role in defending a decision on judicial review in circumstances where remitter is a possible outcome, whether or not the issue is raised by an applicant: see Capricornia Credit Union Ltd v Australian Securities and Investments Commission [2007] FCAFC 112 in which the Full Court reasoned:

14    Where, as here, there is an appropriate respondent other than the original decision-maker, the involvement of that decision-maker in the adversarial process will have the undesirable effect identified by the High Court in Hardiman. It may also increase costs incurred by the parties in the course of the appeal. Little will generally be gained as a result of the decision-maker appearing, save in those limited areas identified by the High Court in Hardiman. Had the applicant raised the question of the first respondent’s participation in the appeal at the outset, we would have indicated the inappropriateness of its continued participation. However that was not done. The point was raised by the Court in the course of the first respondent’s submissions. It seems that the first respondent also participated on an active basis in proceedings before the Tribunal, again apparently without objecting. The question is of some public importance. For that reason the applicant’s failure to raise the matter should not be seen as an absolute bar to the submission which it now makes concerning the costs of the appeal. However such a failure does tend to weaken its position. On the other hand, the first respondent, as a statutory decision-maker, should have been aware of the decision in Hardiman and of the potential for embarrassment attendant upon its participation in proceedings on a partisan basis.

24    However the Hardiman principle generally does not apply in merits review proceedings: see Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; 19 VR 422. There the Victorian Court of Appeal said:

30    Active participation by the primary decision-maker is of particular importance if the person seeking review of the decision did not appear before the decision-maker, or if there would otherwise be no contradictor, as is often the case. But the fact that there is (as there was in the present case) a contradictor apart from the primary decision-maker does not preclude the decision-maker from playing an active role in the review proceeding, nor does it in any way diminish the appropriateness of the decision-maker playing such a role. The most obvious example is a tripartite planning appeal before the Tribunal, where the permit applicant and the objectors will be on opposite sides but the planning authority nevertheless seeks actively to defend the decision which it made, and may well adopt a position different from both applicant and objectors on facts in issue and on conditions to be attached to approval.

31    Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge, and expertise possessed neither by the Tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed – exclusively – by the aims and objectives of the statutory scheme.

32    Of course, where the adversary parties can be expected to cover the relevant issues, the decision-maker – or the Tribunal itself – may decide that there is little for the decision-maker to contribute to the Tribunal proceeding. But the presence of a contradictor is no guarantee that all relevant matters will be canvassed, as the present case illustrates. Although the Shire was acting as contradictor – opposing the proprietor’s application for review of the Commission’s refusal of its application – the Shire elected not to support the Commission’s decision on the ground of community opposition. The Commission itself being absent from the proceeding, there was no party before the Tribunal supporting that critical part of the Commission’s reasoning.

33    Nor is the impartiality of the primary decision-maker jeopardised by active participation in a review proceeding. Of course, as Tagdell JA said in Bausch, the decision-maker must not behave as an adversarial party nor ‘engage in curial tactics’. But, as the example of the TAC itself illustrates, there is no obstacle to the decision-maker being represented by counsel and presenting its own ‘case’ in support of the decision under review. As s 59 makes clear, the decision-maker is a ‘party’ in every sense.

34    What was said by the High Court in R v Hardiman; Ex parte Australian Broadcasting Tribunal (‘Hardiman’s case’) did not concern administrative review proceedings before a tribunal like VCAT. Rather it concerned the – quite different – position of a decision-maker whose decision is the subject of judicial review proceedings. Such proceedings are to be distinguished from ‘merits review’ proceedings before the Tribunal in two important respects. First, judicial review is concerned with error of law. There is no room for debate about the merits of the decision under challenge. Secondly, if the decision under review is found to be vitiated by error of law, the ordinary course is for the decision to be quashed and the matter remitted to the primary decision-maker, which must then carry out the decision-making process afresh in accordance with the legal ruling of the court. Hence the importance off the decision-maker preserving its impartiality.

…

37    An administrative review proceeding, by contrast, is concerned with the merits of the primary decision. As we have pointed out, the primary decision-maker is uniquely well-placed to assist the Tribunal in its consideration of the merits. Secondly, the primary decision-maker is seldom called upon to carry out the decision-making process afresh. The Tribunal stands in the shoes of the primary decision-maker and decides what is the ‘correct or preferable decision’ on the material before it. The decision made by the Tribunal then becomes, for all purposes, the decision of the primary decision maker.

38    Davies J, as President of the Commonwealth Administrative Appeals Tribunal, drew these same distinctions in New Broadcasting Ltd v Australian Broadcasting Tribunal [(1987) 73 ALR 420]. In contradistinction to Hardiman’s case, that case involved merits review of a decision of the Broadcasting Tribunal. His Honour said that in a proceeding before the AAT (Cth) –

… it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments. That is indeed the normal and desirable course. [In Geographical Indications Committee (2000) 64 ALD 325, the Full Federal Court read these remarks as directed at the case where there is otherwise no contradictor – as to which, see [32] above].

39    For these reasons, on our view, the Commission could – and should – have played an active role in the review proceeding. The Commission should have sought to support its own decision by reference to the material which it considered to be significant, and by reference to the statutory regime under the [Gambling Regulation Act 2003 (Vic)] which it administers.

(Footnotes omitted except where expressly set out.)

25    An illustrative and recent application of the Hardiman principle with respect to costs can be found in AIT18 v Australian Information Commissioner [2018] FCAFC 192 (AIT18) per Logan, Griffiths and Farrell JJ:

130    The applicant has failed to establish any of the grounds of appeal. Of course, costs ordinarily follow the event but we do not consider that it is appropriate that the applicant has to pay the costs of both DVA and the Information Commissioner. DVA is the proper contradictor. The Information Commissioner determined that it was appropriate to make submissions, both in writing and orally, concerning inter alia the proper construction of relevant provisions of the Privacy Act and IPP 11.1(a) and (d). They included lengthy submissions concerning the proper construction of remedial or beneficial legislation, which was also addressed by DVA. We do not accept the Information Commissioner’s submission that his participation did not add significantly to the applicant’s costs. The Information Commissioner’s outline of written submissions totalled 15 pages and his oral address took up more time than that of DVA.

131    We acknowledge that the Information Commissioner was joined as a party in the AAT proceeding, as well as in the appeal. It was a matter for the Information Commissioner to decide what role he would play in the appeal, having regard to the well-known relevant observations in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13. That does not mean, however, that the applicant should bear the costs of both respondents in the particular circumstances here. At a case management hearing on 26 April 2018, the Information Commissioner’s then counsel said that, while the Commissioner intended to make submissions which “may be generally more directed at matters for policy and procedure”, he did not “expect to take a more active role than the department…”. In fact, as noted above, the Information Commissioner took up as much, if not more, time in his submissions than did DVA. Furthermore, the Information Commissioner went beyond making submissions on “policy and procedure”. For example, he made detailed submissions on the proper construction of s 16 of the OHS Act.

The parties’ submissions

The Minister’s primary submissions

26    The Minister notes that s 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) confers on the Court a broad discretion with respect to the making of costs orders. The discretion must be exercised judicially, having regard to the settled practice that costs follow the event. The Minister submits that departure from that practice must be justified by some special or unusual feature. The Minister cites a number of cases as authority for that principle, including George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 (George) at [12].

27    The Minister notes previous costs orders made by the Court in favour of the Respondents in these proceedings on 29 June 2017, 30 August 2017, and 23 November 2017. The Minister submits that those earlier costs orders have been entered in accordance with Div 39.4 of the Federal Court Rules 2011 (Cth) (the Rules), there is no formal application before the Court to vary the orders, and there is no basis upon which they could be varied or set aside pursuant to r 39.05 of the Rules in the present circumstances.

28    With respect to the Hardiman principle, the Minister submits that a departure from the practice that costs follow the event is not justified in the circumstances of this proceeding. He submits (at [6]-[21]):

6    The decision under review in Hardiman was an approval by the Australian Broadcasting Tribunal of a proposed acquisition of shares in a commercial television licensee. The Tribunal was obliged not to refuse the application unless, after conducting an inquiry, it considered that the transaction would breach the prohibition on a person having a prescribed interest in three or more such licences. Interested parties had contested both the inquiry in the Tribunal and the review proceedings. Hardiman has since been applied to decision-makers other than tribunals, but the extent to which it does so is uncertain and, as the Court noted in this proceeding, somewhat contentious.

7    For the reasons discussed below, it is submitted that the Hardiman principle does not apply to the Minister in proceedings for judicial review of the Minister's decisions under Parts 7, 8 and 9 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and, even if capable of applying, does not apply in the circumstances of this proceeding.

8    Role of the Minister. As a Minister of the Crown, and the repository of a number of different powers and functions under the EPBC Act, the Minister represents the public interest in the achievement of the objects of the Act in accordance with its terms. He is the only party to the review proceedings whose participation is governed exclusively by the aims and objectives of the statutory scheme. The Minister “is, and necessarily so, a contradictor and protagonist in curial and other proceedings” under the EPBC Act, in the public interest. As the Full Court observed in Peacock v Human Rights and Equal Opportunity Commission [[2005] FCAFC 45 at [76]], contrasting the position of the Commission with that of a Minister:

It is normally the case that when a Minister’s decision is challenged by way of judicial review, the Minister is represented by counsel, and takes an active role in defending that decision.

9    The Minister has taken an active role in judicial review proceedings under the EPBC Act, including proceedings involving other contradictors, without attracting the operation of the Hardiman principle.

10    Nature of the decision under review and the absence of a risk of impartiality. The rationale of the Hardiman principle was that, by adopting the role of a protagonist in judicial review proceedings, the Tribunal may endanger the impartiality which it was expected to maintain in subsequent proceedings if and when relief were granted. Having regard to the nature of the Minister’s statutory role under Pts 7, 8 and 9 of the EPBC Act, it is submitted that the Minister’s participation in review proceedings under the EPBC Act does not, as a matter of principle, give rise to a risk of that kind:

(a)    A decision made under s 75 of the Act is not a decision made inter partes. The Minister is not deciding between the competing positions of opposing parties, but is making an evaluative judgement about whether a proposed action has, will have, or is likely to have, a significant impact on a matter protected by the Act. For this purpose, he is required to take into account the wide range of information that must accompany a referral and, where relevant, comments from other Ministers, the Australian Heritage Council, State or Territory Environment Ministers and the public.

(b)    Further, s 75 forms part of an overall system which may require the Minister, if he decides that the action is a controlled action, to determine whether or not it should be approved under Pt 9. Under Pt 9, the Minister must take into account an even broader range of considerations, including social and economic matters and the principles of ecologically sustainable development, which include the effective integration of long- and short-term economic, environmental, social and equitable considerations.

(c)    The Minister also has an ongoing role as a regulator in relation to a decision made under s 75, including the power to seek an injunction or civil penalties for a contravention of s 77A(2) where a person takes or proposes to take an action in a way that is inconsistent with the manner specified in a notice given under s 77.

11    The Minister’s role is very different to that of the Tribunal in Hardiman and of other “quasi­judicial” tribunals and decision-makers to which Hardiman has been applied: see, eg, Community Television Sydney Ltd v Australian Broadcasting Authority or Capricornia Credit Union Pty Ltd v ASIC. The latter case concerned a review of ASIC’s decision to allow a building society seeking to takeover Capricornia to access Capricornia’s register of members, which required ASIC to decide between the conflicting claims of competing parties. By contrast, under s 75 of the EPBC Act, the Minister’s role involves a decision-making process where there is no inter partes dispute and no potential appearance by the Attorney-General to represent the public interest.

12    Unusual nature of this proceeding. Although this proceeding was, unusually, brought by one of the three proponents of the decision under review, the role of the other two proponents, Petuna and Tassal, as parties to the proceeding does not justify the application of the Hardiman principle. Their joinder does not alter the legal nature of the decision that the Minister would have been required to make if the matter had been remitted to him. It would not transform the nature of the decision to be made under s 75 into one between contending parties.

13    If the decision in the present case were set aside then, prima facie, the Minister would again be considering an action proposed to be taken jointly by Huon, Tassal and Petuna. His consideration of that matter could not be affected by any partiality as between those parties.

14    There was, of course, a strong possibility that, if remitted, their joint application would be withdrawn or substantially modified. Even if the application were pressed, as the Court found, the information on which the original decision [was based] dated from some considerable time ago and it is highly unlikely that the proposal could be reconsidered now (let alone that the Minister could conclude that the action was not a controlled action) without a substantial body of further information. While detailed speculation on these matters is unprofitable, it can be seen that the chance of the Minister having to decide the same issues, on the same material and involving the same parties, was slender. In such circumstances, no issue of prejudice to the Minister’s impartiality arises. Moreover, all of this has been clear at least since Tassal and Petuna filed their defences.

15    In any event, as recognised in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd, in a proceeding for review of a decision by the Victorian Commission for Gambling Regulation in which a hotel proprietor and the local council were opposing parties, it may be appropriate for a decision-maker to participate in review proceedings even in a context in which there is another contradictor. The Court of Appeal there said:

Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge, and expertise possessed neither by the [Tribunal] nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed - exclusively - by the aims and objectives of the statutory scheme.

16    These considerations apply, a fortiori, to the position of the Minister under the EPBC Act.

17    In addition, in this proceeding, the Minister could not have known from April 2017 when Petuna and Tassal were joined as parties or from their pleaded defences whether they would be active contradictors, what issues they would address or how they would address them. That could only have become known, at the earliest, after they had filed and served submissions on the preliminary questions on 31 October 2017.

18    Exceptional case justifying Minister’s participation. Further, as the High Court said in Hardiman, in exceptional cases, a decision-maker may make submissions on its powers and procedures. This was such a case: as the Court has recognised, there were unusual features of this proceeding in that it was brought by one of the three proponents of the decision under review, the applicant was challenging a decision made in its favour and had subsequently expanded its operations in reliance on the decision, and it had a complex procedural history. The procedural history included that, for a period, the matter was proposed to be resolved by way of preliminary questions directed at the construction of the EPBC Act and the Minister’s powers and responsibilities under it. It also included claims that the action has had or was likely to have a significant impact on a declared World Heritage Area or listed threatened species, which were not formally abandoned until the applicant filed and served its Third Amended Statement of Claim in December 2017. These were claims in relation to which the Minister would be expected to play an active role under the EPBC Act.

19     The Minister did not lead any evidence, other than to tender some correspondence to complete the decision record, and did not cross-examine any of the proponents’ witnesses. The Minister’s submissions were at all times limited to issues which had the potential to affect the proper construction and future administration of the EPBC Act, including: whether the source of power for the decision was s 75 or s 77A; the degree of certainty in the specification of a manner required by s 77A; and the effect of a lack of certainty or finality on the validity of a decision made under s 75. Aside from Triabunna Investment Pty Ltd v Minister for the Environment and Energy (No 2), which was heard the preceding week, this was the first proceeding to raise ss 75, 77 and 77A for detailed consideration.

20     Further, as the Court recognised, the Minister first raised the issue of discretion, which was ultimately dispositive of the application. The Minister’s submissions on this issue were directed to the effect of delay for the proper administration of the Act. In relation to the effect on Petuna and Tassal the Minister observed only that the application may have economic consequences for them. It was a matter for them to establish whether or not that was so. The Minister did not descend into that factual contest.

21     Finally, it is relevant to note that, as the Court accepted, the Minister’s counsel at all stages acted entirely consistently with their duties to the Court. In light of that, as well as the unusual nature of the proceeding, the absence of any previous authority suggesting that the Minister’s role in review proceedings under the EPBC Act should be confined by the Hardiman principle and the fact that Hardiman was not raised in the context of this proceeding until 14 March 2018 by the applicant’s letter to the Minister, it is submitted that the usual rule should not be departed from.

(Footnotes omitted.)

Huon’s submissions

29    Huon opposes the Minister’s application and submits further that Order 3 of the 6 July 2018 Orders “should operate to vary any previous orders made in favour of the Minister for costs incurred after [27 April 2017].”

30    Huon’s submissions on the application of the Hardiman principle are as follows:

3    The Hardiman principle provides that a decisionmaker ought to submit to the Court’s orders rather than become a contradictor agitating in favour of the legality of its own decision-making, and “extends to administrative decision makers generally and not just administrative tribunals” [citing Ogawa v Australian Information Commissioner [2014] FCA 229 at [22]]. In the context of the application of the Hardiman principle to the issue of costs, in Community Television Sydney Ltd v Australian Broadcasting Authority and Another (No 2) [(2004) 136 FCR 338] (Community Television (No 2)) His Honour Justice Sackville held that in circumstances where:

(a)    the Australian Broadcasting Authority (ABA) was clearly required to apply procedural fairness in making the decision;

(b)    the applicant’s application raised the prospect of remitter to the ABA where, had that occurred, the ABA would have had to decide between competing applications made by the applicant and the second respondent; and

(c)    there was a contradictor present to advance arguments in opposition to the applicant’s claim for relief,

the Hardiman principle applied to the ABA’s role in the proceeding.

4    His Honour went on to hold that whilst this was an exceptional case where the ABA’s limited participation in the proceeding was appropriate (and warranted recognition in a costs order of 25% of the ABA’s costs (due to allegations made by the applicant to which the ABA was required to respond to)), His Honour held:

“in determining the appropriate costs order it is necessary to bear in mind that the issue requiring a response by the Authority was only one of a number of issues addressed in the evidence and submissions.”

5    His Honour also made the following comments in respect of the ABA’s role in the primary proceeding:

“… Although the Authority presented valuable material explaining the background to the allocation decision, in my view it went beyond merely assisting the Court in relation to the Authority’s powers and procedures. In effect, it resisted the applicant’s claim by addressing and attempting to refute each of its arguments. In other words, it became a protagonist in the proceedings. Consistently with the pronouncement of the High Court, unless there are exceptional circumstances, not present in this case, the Authority should not adopt this role.”

6    Therefore, Community Television (No 2) is authority for the principle that the Hardiman principle does justify a departure from the usual rule that costs follow the event, in the circumstances of this proceeding.

7    Whilst the Applicants agree with the Minister’s submission that the application of the Hardiman principle “requires some adapted flexibility to the particular circumstances if the case” the Minister’s submissions failed to refer to the example provided in that decision, being “…where there is no active contradictor to frame propositions concerning the legality of the decisionmaking…” [citing Ogawa at [24]]

Tassal and Petuna were contradictors

8    The Applicants submit that where an administrative decision maker’s decision is the subject of judicial review proceedings, the active participation of the administrative decision maker in the proceeding is only justified in circumstances where “there is no person present before the Court who can otherwise address the legality of the [the decision maker’s] decisionmaking…” [citing Ogawa at [25]]

9    Tassal and Petuna joined this proceeding at an early stage, filed defences to the Applicants’ statement of claim, made oral and written submissions to the Court opposing the Applicants’ application and appeared at the hearing.

10    Whilst the Minister cited the decision of Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (Macedon) as authority for his submission that “it may be appropriate for a decision-maker to participate in review proceedings even in a context in which there is another contradictor”, the Applicants submit that the reasoning cited by the Minister in support of that submissions was in fact made by the Court in reference to the participation of a decision maker in a merits review proceeding. In Macedon, the Court reasoned that it was “entirely proper” for a decision-maker to actively participate in merits review proceedings. The Court noted in contrast that, a decision-maker whose decision is the subject of judicial review proceedings is in quite a different position and the Hardiman principle would therefore apply.

Determination of competing interest

11    The Applicants submit that had [the] Applicants been successful in seeking the relief sought in this proceeding, the decision would have been remitted to the Minister for redetermination. The Minister’s submission that any redetermination pursuant to s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) would not be inter partes, cannot be accepted. The submissions made by the Applicants in this proceeding as to the defects in the s 77 notice, in terms of how a “particular manner” must be set out and the extent to which matters had to be specified and not left to the operators or the State of Tasmania, were disputed by all the other Respondents.

12     As the Court observed, rather than taking the action jointly, the three operators disagreed as to how the decision should be given effect to. The Court also observed the potential for approval to be refused or subject to conditions that could render production uneconomic. The potential for the operators to be submitting competing applications for approval is obvious.

13     Further, the Minister cannot dispute that had this matter been remitted to the Minister, the Minister would have been obliged to afford procedural fairness to the Applicants.

The Minister’s role in the proceeding

14    It is submitted that there is no basis to distinguish the role of the Minister in this proceeding with other administrative decision makers. The authorities relied upon by the Minister to distinguish the role of the Minister do not deal with the application of the Hardiman principle in relation to a costs application, and in any event are not authority for the proposition that the role of the Minster under the EPBC Act does not attract the operation of the Hardiman principle. These decisions simply note that there are circumstances where the role of the Minister is different to the role of a Tribunal or Commission.

15    The submission that the Minister has taken an active role in judicial review proceedings involving the EPBC Act, including proceedings involving other contradictors, without attracting the operation of the Hardiman principle should be given no weight. It does not appear that the Hardiman principle was raised or considered by the Court in those proceedings.

Exceptional circumstances

16    The Applicants submit that whilst there are no exceptional circumstances that would justify the active participation of the Minister in this proceeding, if the Court is minded to agree with the Minister’s alternative submission, the Applicants submit that the Minister’s involvement in this proceeding was not, contrary to its submissions, limited to “issues which had the potential to affect the proper construction and future administration of the EPBC Act”.

17     As was noted in the Minister’s submissions, the Minister represents the public interest in the achievement of the objects of the EPBC Act in accordance with its terms and is the only party to the review proceedings whose participation is governed exclusively by the aims and objectives of the statutory scheme. It is submitted that such interest would necessitate the Minister being primarily concerned with ensuring that decisions are made that further the objectives of the EPBC Act. The Minister did not however make mention of the aims and objectives of the EPBC Act in its submissions on discretion. Instead, the Minster positively pleaded that the Applicants were not entitled to relief because they unreasonably delayed bringing the proceedings, because Tassal and Petuna would likely suffer detriment if the relief was granted and because of the Applicants’ “inconsistent conduct”. This position essentially prioritises private commercial interests over the achievement of the objects of the EPBC Act.

18     These issues raised by the Minister in his pleadings and submissions to the Court are matters which the Applicants submit, were not, and could not be, issues that were relevant to either the proper construction or the proper administration of the EPBC Act.

19     Further, contrary to the submission made, the Ministers [sic] submissions were silent as to the effect the Applicants’ delay allegedly had on the administration of the EPBC Act; delay was only raised by the Minister as being a relevant consideration in respect of the discretionary nature of the relief the Applicants were seeking.

20     It is submitted that the Minister chose to actively oppose all facets of the Applicants [sic] case and present a case aligned and united with the other Respondents.

21    Whilst the Applicants agree that the Minister’s counsel acted consistently with their duties to the Court, the Minister certainly did not confine his role in the proceeding “in the manner contemplated by the Hardiman principle” and the Applicants submit that whilst it may be open to the Minister to conduct litigation in this way, the consequences are that the Applicants should not pay the Minister’s costs.

The onus to adhere to the Hardiman principle rests with the Minister

22    Finally, the Applicants submit that the Minister’s submission that “In light of…the fact that Hardiman was not raised in the context of this proceeding until 14 March 2018 by the applicant’s letter to the Minister, it is submitted that the usual rule should not be departed from” should be given no weight.

23    As was clearly articulated in Community Television (No 2), the actions of an applicant “… [do] not relieve [an administrative decision maker] from the need to determine whether the role it intends to play in the proceedings is appropriate having regard to the principles endorsed by the High Court [in Hardiman].”

Commonality of interests

24    In addition to the Applicants’ primary submissions regarding the application of the Hardiman principle, the Applicants submit that in any event the Applicants should not be ordered to pay multiple sets of costs where there is no conflict in the case put by the [third] respondent and added respondents even where the added respondents have a right to be joined to an action on the basis that the decision could have an adverse impact on their economic interests. The Courts have stated in this respect [citing Sorell Council v State of Tasmania (No 2) [2004] TASSC 101 at [13] and s 43(3) of the Federal Court of Australia Act 1976 (Cth)]:

“The Court does not like having to give two sets of costs in these cases. It seems to us that if the Minister is satisfied that the trade union is going to be represented and argue the case, then the Minister ought not to be represented, or if the trade union is satisfied that the Minister is going to argue the case, as he generally had done, then the trade union need not be represented. It is desirable to say that the opinion of the Court is that in future in matters of this sort not more than one set of costs will be granted. The Minister may in some cases wish to be represented, even if he appears as amicus curiae, but I do not think we ought to put on employers the burden of paying two sets of costs.”

(Footnotes omitted except where set out, all emphasis Huon’s.)

The Minister’s reply submissions

31    In reply, the Minister submits that Community Television does not justify a departure from the usual rule that costs follow the event in the circumstances of this case, as submitted for by Huon. The Minister submits that the present matter can be distinguished from Community Television on the facts. In Community Television the decision-maker (ABA) had awarded a licence to the second respondent in preference to the applicant, and if remitted for redetermination, ABA would be required to decide between the two parties. If the present matter had been remitted for redetermination, then the Minister would be required to reconsider the original referral. The Minister would not be deciding between Huon, Tassal and Petuna.

32    The Minister submits that if each operator were to submit fresh competing applications for approval, as Huon contends would be likely, then the Minister would be considering new applications proposing different actions entirely than that of the 2012 referral. Each application would be determined on the basis of new supporting material, and would be assessed on its merits. The Minister submits that it is possible that each of these new expansion proposals could be approved and coexist – it would not necessarily be a case where only one proposal could be approved and the Minister would be choosing between competing applications. The parties’ interests would not necessarily be mutually exclusive. As a result, the Minister submits that there “could be no prospect of prejudice to the Minister’s impartiality arising from any position taken in these proceedings” (at [3]).

33    The Minister notes that the Applicants have not cited any authority in which the Hardiman principle has been applied to the Minister in proceedings brought under the EPBC Act, and submits that the role of the Minister is distinct from that of the Tribunal in Hardiman and of other quasi-judicial decision-makers to which the Hardman principle has been applied.

34    The Minister rejects Huon’s submission that the Minister’s position in these proceedings went beyond issues going to the construction and future administration of the EPBC Act in so far as the submissions he made on discretionary issues. The issue of discretion was only a small part of the Minister’s submissions, and it is not in dispute that the bulk of his submissions went to the proper construction of the EPBC Act.

35    The Minister submits:

7    Further, contrary to the Applicants’ submission, at AS [17], the Minister’s submissions on discretion did not “prioritise private commercial interests over the achievement of the objects of the EPBC Act”. The issue of discretion was not a contest between the protection of the matters protected by the Act and the commercial interests of the operators. The Applicants abandoned any claim that the action has, will have or is likely to have a significant impact on a World Heritage Area and/or a listed threatened species: see the Court’s Reasons, at [16].

8    In any event, the submission frames the issue too narrowly. The Minister’s submissions on discretion were directed to the circumstances in which a party should or should not be entitled to a declaration of invalidity under the statutory scheme of the EPBC Act and thus related closely to the administration of the Act. In particular, the Minister’s submissions were directed to:

(a)    whether a party which had sought to have the Minister make a decision in its favour should be permitted subsequently to challenge the validity of that decision; and

(b)    the effect of delay for the proper administration of the EPBC Act, including the regulatory uncertainty that would arise, if a declaration of invalidity were made, in relation to the application of the various offence provisions of the EPBC Act on the past and future conduct of Huon, Petuna and Tassal.

9    The expressed objects of the EPBC Act include the promotion of ecologically sustainable development (s 3(1)(b)) and the effective integration of long- and short-term economic, environmental, social and equitable considerations (s 3A(a)). More generally, an aspect of the proper administration of any Act is that decisions taken years ago, upon which people have relied, should not be re-opened without good reason. For all of these reasons there was nothing inappropriate in the Minister taking a position on the exercise of the Court’s discretion.

10    In so far as the Minister’s submissions referred to the potential impact upon the commercial interests of Petuna and Tassal, this (obviously relevant) point occupied only one paragraph of the Minister’s 31 October 2017 submissions, at [10], and one sentence in the Minister’s 9 March 2018 submissions, at [6]. The Minister properly left the question of the financial impact to Huon, Petuna and Tassal.

11    The Applicants submit, at AS [2], that order 3 “should operate to vary any previous orders made in favour of the Minister for costs incurred after the date referred to in order 3”. No further submissions are made in respect of that point. Order 3 does not have that effect or operation. The Applicants have not applied to vary those earlier costs orders and there is, in any event, no basis on which they should be varied.

12    The Applicants also submit, at AS [24], that they should not have to pay the costs of multiple respondents. This is in substance the same submission as that based on the Hardiman principle: that the Minister should not have taken an active part in the proceeding having regard to the presence of Petuna and Tassal. For the reasons given in these submissions and the Minister’s 2 August 2018 submissions, this does not justify a departure from the usual order as to costs.

principles

Costs generally

36    The Court’s jurisdiction to award costs is conferred by s 43 of the FCA Act, which is in the following terms:

(1)    The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs must not be awarded. …

(2)    Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

(3)    Without limiting the discretion of the Court or a Judge in relation to costs, the Court or Judge may do any of the following:

 (a)    make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial;

 (b)    make different awards of costs in relation to different parts of the proceeding;

   (c)    order the parties to bear costs in specified proportions;

   (d)    award a party costs in a specified sum;

 (e)    award costs in favour of or against a party whether or not the party is successful in the proceeding;

   (f)    order a party’s lawyer to bear costs personally;

 (g)    order that costs awarded against a party are to be assessed on an indemnity basis or otherwise;

   (h)    do any of the following in proceedings in relation to discovery:

(i)    order the party requesting discovery to pay in advance for some or all of the estimated costs of discovery;

(ii)    order the party requesting discovery to give security for the payment of the cost of discovery;

(iii)    make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.

Note:    For further provision about the award of costs, see subsections 37N(4) and (5) and paragraphs 37P(6)(d) and (e).

37    The discretionary power conferred by s 43 is unfettered, save that it must be exercised judicially. I accept the Minister’s submission that the judicial exercise of the Court’s discretion will ordinarily be in favour of the successful party. However I do not accept the submission that George (at [12]) is authority that the Court must exercise its discretion to award costs in favour of the successful party unless some “special or unusual feature” justifies doing so. In George the Full Court simply stated “[t]hough broad, the discretion is one which must be exercised judicially, not whimsically or idiosyncratically, which will ordinarily mean that it will be exercised to the end that costs follow the event.” In my opinion that states the test. The requirement that the discretion is exercised judicially obliges the Court to explain its reasons. However, there is no superadded requirement that in order to make a different order the court must identify something amounting to a “special or unusual feature”.

Consideration

Costs earlier ordered

38    I reject Huon’s submission (at [2] of their 31 August 2018 submissions) that Order 3 of the 6 July 2018 Orders operates so as to allow Huon to apply to revisit earlier interlocutory costs orders the Court has made in the Minister’s favour. As the Minister correctly submits, those earlier orders have been entered pursuant to Div 39.4 of the Rules and there is no formal application before the Court seeking their revision.

39    Moreover I am entirely unpersuaded that there is any circumstance as would justify a variation of those orders pursuant to r 39.05. The Court’s orders of 29 June 2017 and 30 August 2017 each involved Huon seeking and being given leave effectively to recast its entire case—Huon did not abandon its primary case against the First and Second Respondents until the second occasion. The inevitable price for such leave was that Huon pay the costs of the other parties thrown away. Those costs were unnecessarily imposed on the other parties it had joined—including the Minister. There is no plausible basis to revisit those orders.

40    The Court’s order of 23 November 2017 involved costs thrown away as a result of a necessary adjournment of the hearing of proposed preliminary questions following the unexpected filing of affidavit material by Huon—again those costs were imposed on all other parties in circumstances which conventionally justify an order for costs and there is no plausible basis for that order to be revisited.

Application of the Hardiman principle

41    Neither party cites authority binding on this Court as to whether the Hardiman principle applies directly or by way of analogy to the conduct of the Minister in these proceedings.

42    The Minister has footnoted a long list of cases in which Ministers for the Environment (however named) have participated actively in review proceedings (including cases involving other contradictors) seemingly without engaging the operation of the Hardiman principle: Save Beeliar Wetlands (Inc) v Commissioner of Main Roads (No 2) [2017] FCA 88, Triabunna Investments Pty Ltd v Minister for the Environment and Energy (No 2) [2018] FCA 598, Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694; 214 FCR 233, Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419; 218 FCR 491, Secretary, Department of Sustainability & Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1; 209 FCR 215, Western Australian Land Authority v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226; 291 ALR 52, Buzzacott v Minister for Sustainability, Environment, Water, Population, and Communities (No 2) [2012] FCA 403; 291 ALR 314, Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 3) [2012] FCA 744, Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts [2011] FCAFC 59, 180 LGERA 99, Lansen v Minister for Environment & Heritage [2008] FCAFC 189; 174 FCR 14, Lawyers for Forests Inc v Minister for the Environment, Heritage & the Arts (2009) 178 FCR 385, Phosphate Resources Ltd v Minister for the Environment, Heritage & the Arts (No 2) [2008] FCA 1521; 251 ALR 80.

43    I accept that other Ministers for the Environment have taken an active role in a number of other judicial review proceedings without engaging the application of the Hardiman principle but I place little weight on that fact. Mr Kennett SC and Mr Pound do not suggest that the question requiring determination in these proceedings has been the subject of submissions or decision.

44    The Minister also refers to Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 in which the Full Court of the Federal Court observed that, in contrast to an independent agency, when a minister’s decision is challenged by way of judicial review, the minister will normally take an active role in defending that decision (at [76]).

45    It will differ because there will often be no appropriate contradictor in judicial review proceedings unless the Minster as the primary decision-maker is represented.

46    However, in my opinion the decision of the Full Court in AIT18 illustrates that the Hardiman principle can apply to a first instance decision-maker in a “one party” case. The Court is unpersuaded that Weinberg, Jacobson and Lander JJ intended their observation that the normal position will differ to exclude the possibility that the Hardiman principle might apply in a particular case where there is an appropriate contradictor and if the matter might be required to be the subject of independent and impartial assessment on remittal.

Risk of bias on remitter

47    As noted above, in his comprehensive reasons in TXU, Ashley J observed at [19] that the rationale underpinning the Hardiman principle was “the avoidance of the fact (and perhaps the appearance) of partiality of a body which may be called upon to redetermine a matter”. I find that conclusion to be well settled.

48    What the High Court stated in Hardiman is thus a principle to be applied in costs determinations when the circumstances are analogous. The fact that it has not yet been invoked in cases of a particular kind does not mean that it cannot be. In my opinion where the principal is relevant by analogy it can be taken into account in this Court’s evaluation of the factors relevant to its discretion on an award of costs, and in particular as relevant to whether an unsuccessful applicant should be burdened with more than one set of costs.

49    The subject of these proceedings was the Minister’s decision permitting an expansion of fish farming if undertaken in a particular manner. That action was taken by the three operators (Huon, Petuna and Tassal) jointly. If the impugned decision had been declared to be invalid, then the referral would in law would have remained undecided. That would have had the same practical effect as if the referral had been remitted for redetermination.

50    The Minister submits that the referral would be reconsidered pursuant to the specific processes set out in the EPBC Act. The Minister notes the ongoing regulatory role that he has in administering the EPBC Act even after the making of a decision under s 75. In this way, the Minister submitted, the statutory role of the Minister in making the decision, and following the making of the decision, should be distinguished from the role of the Tribunal in Hardiman and the other cases in which that principle has been applied. However, given the Minister’s ongoing regulatory role, and having regard to the self-evident differences that had arisen between Huon, Petuna and Tassal the Court is of the opinion that it would be of heightened, not lessened importance that the Minister avoids any appearance of partiality during that process. I accept Huon’s submission that in the actual circumstances of this case, had Huon been successful, it is by no means improbable that the three fish farmers’ interests would have diverged.

51    I accept that the Minister did not tender any evidence save to complete the decision record before the Court, and that he did not cross-examine any of Huon’s witnesses. However I reject that the Minister’s (persuasive and successful) submissions regarding the weight to be given to discretionary factors and whether a Court should decline to make an order if a party delays seeking relief and has taken advantage of a decision were confined to the proper administration of the EPBC Act. In the Court’s opinion the Minister’s submissions clearly were not so limited: see HAG Ltd at [140]-[142].

52    I noted at [278]-[280] that Mr Galasso questioned whether the Minister had inappropriately taken an active role in these proceedings, rather than a neutral and facilitative role.

53    I decline to describe the role taken by the Minister as inappropriate, but I am satisfied that, having chosen to defend the impugned decision on discretionary grounds rather than on the basis of its validity under the EPBC Act, the Minister was a protagonist in the proceedings.

Presence of an alternative contradictor

54    For the above reasons I am satisfied that the circumstances in which the Hardiman principle may apply prima facie have been engaged. However as Fagan provides for, if the active participation of the Minister as a protagonist had been necessary for the Court to have a proper and well-rounded understanding of the facts and/or the law, the Minister would remain entitled to his costs for doing so. In my view the Minister was entitled to have remained of the opinion that his participation was necessary up to and including 1 November 2017.

55    I accept the Minister’s submission that, as at the date they were joined as parties, the Minister could not have known what role Petuna and Tassal would take in opposing Huon’s application. That is axiomatic with respect to Petuna which in earlier years had joined with Huon in raising concerns about overstocking and environmental harms in Macquarie Harbour.

56    From 27 April 2017, when each of their applications for leave to intervene were heard, both companies were represented by Senior Counsel (Mr Gunson SC on behalf of Petuna and Mr McElwaine SC on behalf of Tassal).

57    On 1 June 2017, Petuna and Tassal each filed their defences to Huon’s first statement of claim. However Huon’s pleadings were twice extensively recast. It was not until some months later that the Minister could have known the basis upon which Petuna or Tassal (or both) were intending to defend the validity of the challenged decision. Having regard to the breadth of the Court’s discretion on costs, I do not consider the Minister’s position during those months as warranting disapprobation by refusal of costs. In my view, the Minister was entitled to prepare for the pending litigation on the basis that his involvement might be necessary.

58     Petuna’s outline of submissions filed on 31 October 2017 made extensive submissions on the statutory framework of the EPBC Act (at [18]-[36]) and strenuously opposed the Applicants’ contentions that the decision was invalid (at [37]-[45]). Tassal’s outline of submissions filed on 1 November 2017 similarly addressed the legislative framework and made submissions actively opposing Huon’s contentions. Each of Petuna’s and Tassal’s written submissions also addressed pleaded discretionary factors such as delay, acquiescence and impacts on third parties which were asserted to warrant the Court refusing relief in any event.

59    I am satisfied that from that point in time the Minister was aware that highly competent senior counsel had been instructed by each of Petuna and Tassal to oppose Huon’s application for judicial review. The Minister knew that that opposition was comprehensive of all relevant issues.

Conclusion

60    I am satisfied that as from 1 November 2017 it was apparent that both Petuna and Tassal would both be actively opposing all facets of Huon’s application, and were alternative contradictors to the proceeding. I am satisfied that it was equally apparent that each intervening party had instructed highly effective and competent senior counsel to address the legal and discretionary issues arising. Huon’s acquiescence to the Minister filing evidence and submissions did not relieve the Minister from his obligation to observe the Hardiman principle in determining the nature of the role it would play.

61    The Minister has not identified any submission that he would have wanted to make or issue that he would have raised that was not also raised by Mr McElwaine’s and/or Mr Gunson’s submissions. After 1 November 2017, the Minister was fully entitled to remain a party to the proceedings, and to oppose the application on all available bases, however, in the Court’s opinion, given the existence of appropriate alternative contradictors, the Applicants should not be required to pay his costs in doing so.

62    I note in that regard that because Petuna and Tassal had significantly different interests and were necessarily joined, Huon having failed in its application was obliged to pay each of their costs. I note that Huon was the author of its own misfortune in having to pay several sets of costs thrown away but to require Huon to pay three sets of costs beyond 1 November 2017 would be an unfair burden. In reaching that conclusion the Court intends no adverse reflection on Mr Kennett’s and Mr Pound’s careful and persuasive advocacy.

63    In the light of my conclusion, each of Huon and the Minister has had partial success. I see no need to make an order for the costs of this interlocutory application.

64    I make the following orders:

1.    Order 3 of the 6 July 2018 Orders be vacated.

2.    The Applicants pay the Third Respondent’s costs up to and including 1 November 2017 as agreed or assessed.

3.    Order 2 does not operate to vary previous costs orders made in this application prior to 6 July 2018.

Associate:

Dated:    3 December 2018