Federal Court of Australia

Rainforest Reserves Australia Inc v Minister for the Environment and Water (Costs) [2025] FCA 702

ORDERS

THE COURT ORDERS THAT:

1.    Subject to Order 2, the Applicant pay, as agreed or taxed:

(a)    50% of the First Respondent’s costs of and incidental to the proceeding on the ordinary basis; and

(b)    60% of the Second Respondent’s costs of and incidental to the proceeding on the ordinary basis.

2.    The Applicant pay each Respondent’s costs thrown away, as agreed or taxed, by reason of the filing of the:

(a)    amended originating application on 20 December 2024; and

(b)    further amended originating application on 29 March 2025.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    On 22 May 2025, I delivered a judgment in these proceedings: Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 532 (“J” or “May Judgment”). These reasons assume familiarity with the May Judgment and I adopt the terms defined there.

2    I made orders dismissing the amended originating application and made directions for the parties to file and serve submissions on the question of costs. Both the Minister and the Proponent (referred to together for convenience as the “Respondents”) seek an order that the applicant pay their respective costs on the ordinary basis, as agreed or taxed. The applicant opposes those orders and submits that there should be no order for costs.

3    For the reasons that follow, the applicant should pay:

(a)    50% of the Minister’s costs on the ordinary basis as agreed or taxed;

(b)    60% of the Proponent’s costs on the ordinary basis as agreed or taxed; and

(c)    each of the Respondents’ costs thrown away by reason of the filing of the amended originating application on 20 December 2024 and the further amended originating application on 29 March 2025, as agreed or taxed.

2.    THE PARTIES’ CONTENTIONS

4    The Respondents accepted that pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), an award of costs is discretionary, and the discretion is to be exercised judicially. However, it was submitted that the general rule is that this discretion should be exercised in favour of the successful party: citing Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2024] FCAFC 97 (ECCQ) at [61] (Colvin and Horan JJ). The Respondents submitted that the general rule follows the principle that “it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party”: citing Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ per curiam). The Respondents submitted that the ordinary rule should be applied here as there were no special or exceptional circumstances warranting a departure from it.

5    On the other hand, the applicant submitted that there were exceptional and special circumstances that warranted a departure from the usual rule. It advanced four arguments in support of this position.

6    First, the applicant submitted that its challenge to the validity of the Approval Decision made under ss 130(1) and 133(1) of the EPBC Act arose in a “public law context” in accordance with the standing afforded to persons such as the applicant and in circumstances where it has been observed that “the environment cannot speak for itself; someone must speak for it”: citing Mortimer CJ in ECCQ at [55].

7    Second, and related to the first point, the applicant contended that it advanced important legal issues in the proceedings that were in the public interest: relying upon the majority judgments in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Gaudron and Gummow JJ and Kirby J; Brennan CJ and McHugh J dissenting). It was submitted that the applicant’s “primary motivation” was to protect the environment and uphold the public interest by seeking to ensure that the Approval Decision was made within power and consistently with Australia’s international law obligations. In this respect, it was submitted that the important issues that were advanced in the public interest included:

(a)    matters pertaining to the scheme of the EPBC Act;

(b)    consideration of s 140 of the EPBC Act and whether it created a jurisdictional fact in circumstances where that issue had not been previously considered;

(c)    the fact that s 140 of the EPBC Act is an important provision seeking to promote Australia’s obligations under international law in relation to migratory species of birds; and

(d)    the analysis and interpretation of the Specified Bilateral Treaties including important clarification as to the meaning of those Treaties such as whether the word “taking” extends to an unintentional killing.

8    It was submitted that, in circumstances where these matters were raised in the public interest, an adverse costs order could have a “chilling effect” on other individuals or organisations who might otherwise seek to legitimately challenge future decisions made under the EPBC Act: citing Mortimer CJ in ECCQ at [40]–[51].

9    Third, the applicant submitted that it was a not-for-profit environmental charity which had no private, commercial or personal interest in the proceedings: relying upon Oshlack at [20(iii)] (Gaudron and Gummow JJ) and [136] (Kirby J); and ECCQ at [48] (Mortimer CJ).

10    Fourth, the applicant submitted that its concerns about the Minister’s decision and the environmental impact of the Wind Farm were shared by a significant number of members of the public as demonstrated by the Court’s decision to live stream the case on YouTube and by participation of members of the public through that forum.

11    In the alternative to these contentions, the applicant submitted that, if the applicant is ordered to pay any costs, it would be unreasonable for it to be burdened with two sets of costs. It was submitted that the Minister’s interest in ensuring the lawful exercise of statutory powers meant that he should not be compensated for any public funds expended in EPBC Act litigation “where there is another active contradictor”: citing ECCQ at [26]–[29] (Mortimer CJ). It was submitted that the applicant should not be required to pay the Minister’s costs. Alternatively, it was submitted that its liability for the Respondents’ costs should be apportioned so that it is not ordered to pay a sum greater than one set of costs.

12    In response to these submissions, the Respondents contended there is no warrant to read the decision of Mortimer CJ in ECCQ as giving rise to a point of principle that the Court is to consider whether a costs order could have a “chilling effect” on future challenges to the exercise of a statutory power and observed that Colvin and Horan JJ did not join in those reasons. The Respondents otherwise submitted that:

(a)    the fact that the proceedings arose in a public law context was not a “special circumstance” justifying a departure from the ordinary rule that the successful party is entitled to its costs;

(b)    the applicant’s contentions as to its pursuit of matters in the public interest had to be weighed against the circumstance that it sought to challenge a project with clear environmental benefits involving a Wind Farm that would create renewable energy;

(c)    further, the matters that were said by the applicant to have been in the public interest did not pay sufficient regard to the fact that the primary issues in dispute between the parties as to the scheme of the EPBC Act and whether s 140 gave rise to a jurisdictional fact were resolved in a way that was consistent with earlier authorities, and that the interpretation of the Specified Bilateral Treaties proceeded on the basis of the clear terms of those Treaties and the applicable international authorities; and

(d)    the applicant’s contentions that its interests were as a not-for-profit charity had to be considered in the context that there was a paucity of evidence as to its sources of fundings and motivations for commencing the proceedings.

13    In relation to the last point, the Proponent sought to rely upon an affidavit which was filed and served without leave of the Court as to matters pertaining to the operations of the applicant. The applicant opposed leave being granted for the receipt of that affidavit. In those circumstances, I have not read, let alone had regard to that affidavit.

14    The Respondents also contended that the applicant’s position paid insufficient regard to its disentitling conduct, specifically, its “abandonment of an array of grounds at various stages of the proceedings”.

15    As to the applicant’s alternative submission, the Respondents submitted that the applicant chose to commence proceedings against both the Minister and the Proponent and should have reasonably expected in doing so that each of these parties would be separately represented. It was further submitted that there was not a substantial duplication of arguments between the Minister and the Proponent, and that the Proponent took primary carriage of the oral argument so as to minimise duplication. The Proponent submitted that, to the extent that the Court was minded to reduce costs on this account, its costs should not be reduced as it undertook the primary carriage of the written and oral submissions.

16    The Minister separately submitted that it is not correct that he should not be awarded costs on the basis that the May Judgment benefits from the clarification as to the framework of the EPBC Act or, specifically, as to s 140. That is because the Minister’s position was that those matters had largely been settled in earlier authorities. Further, the Minister submitted that advancing the proper construction of s 140 was an essential aspect of defending the applicant’s claim where both the Minister and the Proponent were required to defend that claim: citing and relying upon Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253; 253 LGERA 427 at [104] (Preston CJ of LEC; Kirk JA and Basten AJA agreeing). The Minister further submitted that the mere presence of another “active contradictor” does not disentitle the Minister from his costs or an apportioned reduction of those costs including in circumstances where the applicant had not identified any specific basis for reducing the Minister’s costs on the basis of any specified duplication or wasted effort.

3.    CONSIDERATION

17    Section 43 of the FCA Act gives the Court a wide discretion to make an award as to costs. It is a discretion to be exercised judicially: Oshlack at [34]–[35] (Gaudron and Gummow JJ). The ordinary position in civil litigation is that costs follow the event: Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 327 ALR 192 at 193 [6] (French CJ, Kiefel, Nettle and Gordon JJ); George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 at [12] (Ryan, Marshall and Logan JJ); ECCQ at [61] (Colvin and Horan JJ).

18    However, it has also been observed that s 43 of the FCA Act does not prescribe a general or ordinary rule as to costs and does not specify that costs are to follow the “event”: see Queensland North Australia Proprietary Limited and others v Takeovers Panel and others (No 2) [2015] FCAFC 128; 236 FCR 370 (Dowsett, Middleton and Gilmour JJ) at [17]–[18].

19    It is perhaps more appropriate to state that the general principle – described as “one of the most, if not the most important” principles – is that the successful party is entitled to its costs, unless there are special circumstances that warrant a departure from that position: Sangare at [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ per curiam); Oshlack at [67] (McHugh J (albeit in dissent)). The general principle does not lose its “compelling force” simply because the successful party happens to be wealthy or not, as no party is asked to be subjected to litigation in which it is ultimately successful (even if the claims against it had merit): see ECCQ at [13] (Mortimer CJ) addressing Sangare at [25].

20    It has been held that in environmental proceedings, the ordinary rule as to costs may not always prevail and that “public interest litigation” may, in particular circumstances, inform the exercise of the Court’s discretion to depart from that rule: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; 172 LGERA 157 at [3]–[9] (Basten JA; McColl JA agreeing) and at [24] (Young JA; McColl JA agreeing). That is not to say that there is a general exception from the usual order for “public interest litigation”: Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 at [6] (Bathurst CJ, Beazley P and Ward JA); South-West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; 154 ALR 411 at [1]–[2] (Gaudron, McHugh, Hayne and Callinan JJ) and [4]–[5] (Kirby J).

21    That litigation may be characterised as “public interest litigation” was one factor that contributed to the conclusion of Stein J (the primary judge in Oshlack) not to order the unsuccessful party to pay the costs of the successful party. His Honour’s decision was considered and affirmed by the majority of the High Court in Oshlack. Although it must be observed that the outcome in Oshlack was governed by the unique statutory provision in issue there, the identification of principles in the decision of Gaudron and Gummow JJ have often been relied upon in other statutory contexts. For example, Besanko J distilled four general propositions from the reasons of Gaudron and Gummow and JJ in Oshlack which his Honour applied in the course of a determination as to the appropriate order as to costs in litigation under the EPBC Act: see Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 3) [2012] FCA 744 at [5] (Buzzacott Costs Decision). Relevantly, his Honour observed:

(1)     The fact that proceedings may be characterised as “public interest litigation” may be a factor which contributes to a conclusion of “special circumstances” so as to justify a departure from the ordinary rule that the unsuccessful party pays the successful party’s costs. However, of itself it is not sufficient to justify a departure;

(2)     The fact that the unsuccessful applicant had pursued the litigation in order to ensure compliance with the law and not for the purposes of private gain;

(3) The fact that a significant number of members of the public shared the unsuccessful applicant’s concerns and in that sense there was a “public interest” in the outcome of the proceeding; and

(4)     The fact that the basis of the challenge was arguable and had resolved significant issues about an Act of Parliament and its administration.

22    In rejecting that there was a general category of “public interest litigation” that bears upon the determination of costs, Gaudron and Gummow JJ in Oshlack stated at [30]:

That is a “nebulous concept” unless given, as the primary judge did in the present case, further content of a legally normative nature. It also tends, in this litigation, to distract attention from the legal issue which is at stake.

(See also the similar observation of Kirby J in Oshlack at [136].)

23    As Colvin and Horan JJ stated in ECCQ at [63], given that the outcome in Oshlack turned upon the particular statute in question, “the reasons did not articulate an approach that was to be adopted for ‘public interest litigation’ more generally”: citing Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [21] (Black CJ and French J; Beaumont J dissenting); and Save the Ridge Inc v Commonwealth [2006] FCAFC 51; 230 ALR 411 at [6]–[16] (Black CJ, Moore and Emmett JJ). Colvin and Horan JJ further stated at [64]:

However, where the issue concerns the exercise of statutory power and raises matters of high public importance about which there is substantial public controversy that extends well beyond matters of local or even regional environmental concern and in respect of which it might be said there was reasonable merit then those aspects together may provide a principled basis for an order that each party bear its own costs on the basis that the circumstances are exceptional. This is especially so where the statutory regime invites the involvement of members of the public as part of the mechanism to advance the statutory purpose.

(Emphasis added.)

24    In ECCQ, the Court ordered that there be no costs of the appeal having regard to aspects of the case that that were of “special significance”, including where the Minister had accepted substantial new information that had been presented by the appellant.

25    There have been a number of other cases where the Court has not ordered an unsuccessful party to pay costs or has been called upon to consider making such an order.

26    In Ruddock, Black CJ and French J examined the general principles relating to costs, including those referred to and articulated in Oshlack. Their Honours (Beaumont J dissenting) made no order as to the costs of the appeal or the costs of the initial application, observing at [29] that:

This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which ma[n]y of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J.

27    A different outcome prevailed in Save the Ridge. There, Black CJ, Moore and Emmett JJ determined what orders, if any, should be made as to the costs of an appeal brought by an applicant who had unsuccessfully contended at first instance that certain activities of the National Capital Authority were prohibited under the EPBC Act. The appellant was, in substance, unsuccessful on appeal but submitted that no costs order should be made. Their Honours held that there were “insufficient reasons to depart from the ordinary rule that the unsuccessful party should bear the costs of the appeal”. Their Honours acknowledged that the respondent’s success “was by no means complete”, that the issues raised were not unimportant, and that the outcome of the appeal was by no means certain: at [11]. However, the Full Court observed that the appeal did not raise questions of the same nature as those in issue in Ruddock – being important issues of law relating to alleged deprivation of liberty, executive power, the operation of migration legislation and international law obligations. Instead, it concerned points of statutory construction that, while not unimportant, were limited in application: [13].

28    In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts and Others [2008] FCA 8; 165 FCR 211, Heerey J held that no order should be made as to costs despite the fact that the applicant had been unsuccessful in reviewing a decision made under the EPBC Act. In so deciding, his Honour took into account several matters including that the applicant represented a large number of community and environment groups and had engaged in years of campaigning about the environment of Port Phillip Bay; that the condition of Port Phillip Bay was a matter of “high public concern” and not just for the four million or so people who lived around it; that there was a coincidence of what was “in the public interest” and what the “public were interested in”; and that the application raised novel questions of general importance as to the approval process under the EPBC Act: cited in Buzzacott Costs Decision at [12].

29    In Buzzacott Costs Decision, Besanko J made no order as to costs against the unsuccessful party. There, his Honour observed (at [7]) that while a matter “may be in the public interest because a substantial section of the public are affected by the subject matter of the litigation”, a matter will not necessarily be in the public interest “simply because members of the public are interested in the result” of the matter. The facts there related to a decision to approve the expansion of the Olympic Dam mine and processing plant: Buzzacott Costs Decision at [1]–[2], [28]. His Honour’s decision not to award the successful parties costs was made for reasons including that there was significant public interest (as evidenced, for instance, by the more than 4000 submissions received in relation to the proposal to construct the mine); that the legal points raised were of sufficient complexity and importance (albeit less complex and less novel than those encountered in Ruddock or Blue Wedge); that the applicant was an aboriginal elder who had undertaken duties for some 20 years (and had actively opposed uranium mining); and that the proceeding had been conducted efficiently with commendable discrimination: at [16], [18], [22], [27].

30    However, in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; 280 ALR 91 (Emmett, McKerracher and Foster JJ), the Full Court emphasised that the mere fact that a case is brought by a party seeking to promote environmental causes will not itself warrant a departure from the usual order as to costs. In determining the costs of the appeal, the Full Court concluded that the fact that some members of the public had demonstrated some interest in the removal of flying foxes from the Royal Botanical Gardens was insufficient to establish special circumstances. In coming to this conclusion, the Court further stated at [21]–[23] that it had regard to the fact that the appeal raised factual matters of no precedent value, that there was no substantial new point of principle in the determination of the appeal and that, although arguable, the appeal did not have strong prospects of success.

31    There have also been decisions made by this Court that the unsuccessful applicant in proceedings under the EPBC Act not be ordered to pay the full portion of costs incurred by the successful party, or there has been an apportionment of costs as between the successful parties where there has been more than one contradictor to the proceedings. This was the position that prevailed in Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19; 101 ALD 1 (Branson, Tamberlin and Finn JJ). That decision involved an unsuccessful appeal. At issue was a decision made by the relevant Minister to permit the construction of a “bleached Kraft pulp mill” by Gunns Ltd (Gunns). Both the Minister and Gunns argued that they should be entitled to the costs of the appeal. The Full Court ordered the unsuccessful appellant to pay 70% of the Minister’s party/party costs of the appeal (at [11]) and limited the costs recoverable by Gunns to 40% of its party/party costs of the appeal (at [13]). In reasoning to this conclusion, the Full Court had regard to the fact that, (a) the proceedings on appeal raised matters of general importance to both the Minister and the public as to the proper construction of s 42 of the EPBC Act; (b) a large segment of the Australian community wished to avoid harm to the environment; (c) the appellant had not pursued the litigation for personal gain; and (d) although Gunns was a proper party to the litigation, none of its conduct had been challenged, it had no reason to think that the Minister would not deploy appropriate legal resources to defend the appeal, Gunns had retained both senior and junior counsel and sought to participate on equal terms with the Minister in the defence of the appeal as illustrated by its substantial written submissions: at [9]–[13].

32    In Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095, Griffiths J resolved the question of costs that arose following his Honour’s dismissal of an application for review brought by the Australian Conservation Foundation Incorporated (the ACF) in Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042; 251 FCR 308. In the substantive proceeding, the ACF sought to impugn the Minister’s decision to approve the development of the Adani coal mining project under the EPBC Act. His Honour dismissed this application but permitted the parties to file submissions about the appropriate order as to costs.

33    The ACF submitted that there should be no order as to costs, relying on the decision and reasoning of Heerey J in Blue Wedges and that of Besanko J in the Buzzacott Costs Decision. In the alternative, the ACF submitted that his Honour should exercise discretion in the manner exercised by the Full Court of the Federal Court in Wilderness Society, such that the ACF would be required to only pay 70% of the Minister’s costs and 50% of Adani’s costs: at [3]. Griffiths J accepted the alternative position: see [18]. In arriving at this conclusion, his Honour had regard to various factors, including the fact that Adani’s proposed project was “very substantial” and had “generated public interest”, as was reflected in a series of earlier decisions of different courts all relating to the same project: see [12] and the cases there cited. His Honour also had regard to evidence tendered by the ACF, which established that it had 340,000 supporters and had conducted polling which revealed that 86% of those surveyed considered that the Federal Government must make protecting the Reef “an absolute priority”: see [6]. In determining the apportionment of costs as between the Minister and Adani, Griffiths J concluded that Adani had played “a larger role in the proceedings than was necessary”: at [17]. In coming to the conclusion, his Honour identified that Adani had elected not to take on a secondary role, choosing instead to engage both senior and junior counsel to appear for it despite the fact that the Minister had already done so, and by preparing written submissions that exceeded the Minister’s submission in length. His Honour concluded that this resulted in “a degree of duplication”: [17].

34    Having failed at first instance, the ACF appealed but without success: see Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2017] FCAFC 134; 251 FCR 359 (Dowsett, McKerracher and Robertson JJ). Notwithstanding its failure, the ACF again sought to be heard on the question of costs, contending that it should not be required to pay the costs of the Minister and Adani in relation to the appeal. This culminated in a further judgment: see Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (No 2) [2017] FCAFC 216 (Dowsett, McKerracher and Robertson JJ). The ACF submitted, amongst other things, that “its motivation was to ensure obedience to environmental law and preservation of an important part of the environment”: at [6]. However, the Full Court did not accept the ACF’s position. Whilst the Full Court observed that the EPBC Act is “complex” and the nature of the appeal required a “disciplined analysis of the legislation”, the Full Court reasoned that “there was nothing particularly difficult about them, or about other aspects of the appeal”: at [5]. And, whilst the Full Court accepted that issues concerning the Great Barrier Reef and climate change were matters of great importance to the Australian community, it did not follow that “misconceived litigation should be conducted at the expense of parties who have correctly understood the law”: at [6]. Further, the Full Court did not accept that the appeal was clearly arguable, concluding instead that it proceeded on “misconceptions concerning the legislation, the Minister’s decision and the primary Judge’s reasons”: at [8]. The Full Court ordered the ACF to pay both respondents’ costs of the appeal.

35    My analysis of the abovementioned decisions is by no means exhaustive. Nor are these the only decisions that bear upon the topic of costs in proceedings arising under the EPBC Act. They are, however, ones which are illustrative of the following basal, and trite, points:

(a)    the discretion to award costs must be exercised judicially, but it is nevertheless a broad discretion;

(b)    in proceedings under the EPBC Act, it is relevant to take into account that the legislature has conferred standing upon particular persons to bring proceedings challenging decisions of the Minister;

(c)    the mere fact that such litigation involves the pursuit of a public interest, including the interests of the environment, may not of itself be sufficient to establish special circumstances to warrant a departure from the usual order as to costs;

(d)    a departure from the usual order as to costs may be warranted in such proceedings where the matter concerns the exercise of statutory power and raises matters of high public importance about which there is substantial public controversy beyond matters of local or regional environmental concern and where there is reasonable merit in the arguments that are advanced;

(e)    a departure from the usual order as to costs so as to apportion or limit costs as between two active contradictors in proceedings under the EPBC Act may be appropriate having regard to the issues raised by the litigation, and whether one or other contradictor has addressed the same issues and minimised or avoided duplication in written and oral evidence and submissions;

(f)    it is relevant to take into account the merits of the unsuccessful party’s arguments; and

(g)    ultimately, as the power to award costs is discretionary, the outcome of every case will be fact dependent.

36    In the present case, I am not satisfied that there should be no order as to costs. However, I am satisfied that there should be a departure from the usual order as to costs in that there should be an apportionment of costs as between the Minister and the Proponent such that the applicant should pay 50% of the Minister’s costs on a party/party basis and 60% of the Proponent’s costs on a party/party basis. My reasons for so concluding are as follows.

37    First, I accept that, in a general sense, the case propounded by the applicant raised matters of general public interest as to the protection of rare and unique species of birds and bats. I accept that the matters raised were ones of significance to the Australian community at large. These rare and unique species are found in the UNESCO-listed Wet Tropics World Heritage Area. It is an area not only of national but also global significance. That the Australian community has an interest in the protection of migratory species of birds is reinforced by Australia’s entry into the Specified Bilateral Treaties and s 140 of the EPBC Act.

38    However, in my view, the mere fact that the proceedings raised matters of general public interest is not of itself a reason to depart from the usual order as to costs. This fact needs be weighed together with other facts, including countervailing considerations.

39    It is necessary to observe that the present litigation was in one sense unique in that, as against the public interest matters raised by the applicant, the Approval Decision is one that itself seeks to promote the public interest. The Proponent’s point was well made that the Wind Farm seeks to promote genuine environmental objectives in renewable energy. To this may be added that the Approval Decision was itself the end point of a long process that had involved public consultation and input, resulting in calibrated outcomes seeking to promote and protect migratory bird species. That is manifest from the fact that the Approval Decision requires the implementation of a BBMP directed at mitigating the impact of the operation of the Wind Farm on migratory birds and other protected species of rare birds and bats. The Approval Decision also involves the implementation of many other measures directed to the promotion of the environment that were not the subject of the challenge before the Court. I raise these matters merely to demonstrate the point that the concept of the “public interest” is contestable and is not one dimensional.

40    Second, I also accept that the applicant had standing under the EPBC Act to bring the proceedings. However, the mere fact that it had standing to bring the proceedings is not in my view a particularly significant factor in the present case for or against a departure from the usual order as to costs.

41    Third, on the whole, I do not consider that my reasons in the May Judgment quelled a substantial legal controversy to the benefit of the Minister in administering the EPBC Act or to the public more generally.

42    Ground 1 (the Migratory Species Grounds) was largely determined by reference to the previous authorities addressing the scheme of the EPBC Act. It is true that an aspect of Ground 1, which dealt with whether s 140 created a jurisdictional fact, had not previously been considered in the authorities, but the resolution of that question turned on the application of well-settled principles. Another aspect of Ground 1, as to whether the Approval Decision was, in fact, inconsistent with the Specified Bilateral Treaties, did raise matters of wider legal significance. This required the resolution of issues arising from the interpretation of those Treaties and the application of international law. I accept that this aspect of Ground 1 raised matters of general and public importance, as well as legal significance.

43    Ground 3 (the Baseline Measures Ground) advanced an argument which, in my view, was unmeritorious. Without repeating my earlier reasons, Ground 3 was, in my view, contrary to the plain facts.

44    I accept that Grounds 5 to 7 (the Uncertainty Grounds), which included the Impact Trigger Threshold Issue and the Further Ministerial Approval Issue, raised matters of some legal complexity. In the result, I largely resolved these issues by the application of settled authorities, but that does not undermine the fact that they were matters of some complexity in respect of a legislative scheme that is not always expressed in plain or simple terms.

45    Thus, whilst I accept that the Minister and the public have obtained some benefit from the determination of the issues raised by the applicant, on the whole, I do not consider this to be a powerful factor for a departure from the usual order as to costs.

46    Fourth, whilst I am prepared to accept that the applicant is a not-for-profit charity, I do not consider it to be a persuasive factor one way or another due to the paucity of evidence before me as to its operations and activities. As mentioned earlier, the Proponent sought to lead evidence, over the objection of the applicant, to traverse these matters. In view of the applicant’s objection, I have not read that material. However, equally, I am not convinced that I can accept a bare assertion as to the applicant’s functions and sources of funding as a registered charity. I am simply left with an inadequacy of evidence.

47    For similar reasons, it is not possible for me to make much of the point advanced by the applicant that an adverse costs order here will have a “chilling effect” to litigation under the EPBC Act. To the extent that this is a matter that is a relevant consideration, all I can really say about it is that the applicant, as a registered charity, may or may not have access to any number of donors of different means, as might other organisations of its type. On the facts here, I had insufficient material upon which to give any weight to this consideration, to the extent that it is relevant.

48    Fifth, I am also not satisfied that the mere fact that I permitted the proceedings to be livestreamed on the Court’s YouTube channel meant ipso facto that the matter was one of public interest. As the communications from my chambers to the parties indicated prior to me approving that course, I had decided that this was the most administratively convenient way to manage a two-day hearing where a number of persons wished to observe the hearing from interstate. My approval of the “live streaming” of the proceedings was not determined by the public interest of the litigation, but by administrative convenience. However, that is not to say that I do not accept that the proceedings raised matters of general public interest.

49    Having regard to the above factors, I do not accept the applicant’s contentions that the public law context, the public interest factors, or the other reasons advanced by it, warrant a departure from the ordinary position that the applicants should pay the successful party’s costs of the proceedings. Accordingly, I do not accept the applicant’s primary position that there should be no order for costs in the Respondents’ favour.

50    However, I do consider that there is merit in the applicant’s alternative position on costs. I am satisfied that there was a degree of duplication involved in the defence of the proceedings as between the Minister and the Proponent.

51    I qualify what follows by emphasising that the written and oral submissions for and on behalf of the Minister and the Proponent (as with those presented by the applicant) were presented with the customary professionalism and skill that the Court expects, as were the other materials undoubtedly prepared by the respective instructing solicitors. Both the Minister’s and the Proponent’s written and oral submissions were of great assistance to me in the preparation of the hearing and in considering the rival arguments and in the preparation of my reasons. I also consider that there was an efficient allocation of time in oral address as between the Senior Counsel appearing, respectively, for the Minister and the Proponent.

52    Despite the professionalism of the work involved in the presentation and hearing of the proceedings, the fact is that the Minister took an active role in defending the Approval Decision notwithstanding the presence of a well-resourced contradictor. Equally, the Proponent also took an active role in defending the Approval Decision notwithstanding the presence of a well-resourced Minister of the Commonwealth. I accept that both the Minister and the Proponent had no choice but to be subjected to the litigation by the forensic decision made by the applicant to commence proceedings against both parties. However, both the Minister and the Proponent retained senior and junior counsel, both filed written submissions that addressed most of the same grounds and arguments and, whilst the Minister and the Proponent efficiently allocated time as between themselves in oral address, both parties nevertheless incurred costs by appearances in court. This is not to be critical, but to state the reality.

53    I am conscious of what was stated by Preston CJ sitting in the NSW Court of Appeal in Bowers at [104] that involvement of the public authority may be justified where an applicant’s “grounds of [review], and [its] submissions and applications at the hearing of the [application], involved substantive challenges to the conduct of both the [public authority] and [the proponent] and justified substantive responses from both respondents”. Those matters led his Honour to conclude at [104] that:

The [public authority] was justified in not simply making a submitting appearance in the face of these claims impugning its conduct. This situation is different to that considered in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [46]; Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd at [67], [93].

54    I have also taken into account that this was not a case where the Minister and the Proponent were private parties with aligned or common interests such that they could have chosen to have joint representation.

55    However, I am equally conscious that, in the exercise of the discretion as to costs, it is relevant to take into account whether both the Minister and the Proponent should be compensated for their respective expenditures in circumstances where there was another active contradictor that was more than capable of taking the lead.

56    In all of the circumstances, I consider that an appropriate order as to costs would be that the applicant be liable to pay 50% of the Minister’s costs on the ordinary basis as agreed or taxed, and 60% the Proponent’s costs on the ordinary basis as agreed or taxed. The slightly higher amount for the Proponent’s costs reflects the fact that it took up the greater allocation of time in the oral addresses before the Court. In my view, this best reflects the justice of the case as to costs.

57    I also consider that it is appropriate that the applicant pay the Minister’s and the Proponent’s costs thrown away by reason of any and all of the amendments to its pleadings and its abandoned grounds of review. In my view, these costs should be treated separately to the balance of the costs in the proceedings.

Associate:

Dated:    27 June 2025