Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v Director-General of the Department of Environment and Climate Change & Anor

KEY ISSUES: Costs :- proceedings brought in the public interest - unnsuccessful applicant - an insufficient basis for departing from the usual order that costs follow the event.

Civil Procedure Act 2005 s 98 LEGISLATION CITED: Land and Environment Court Rules 2007 r 4.2 National Parks and Wildlife Act 1974 ss 70, 90, 176A Uniform Civil Procedure Rules 2005 r 42.1

Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v New South Wales Minister for Planning (No 2) [2008] NSWLEC 272 Council of the Municipality of Botany v Secretary Department of the Arts, the Environment, Tourism and Territories (1992) 34 FCR 412 CASES CITED: Engadine Area Traffic Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72

APPLICANTS: B K Nolan (barrister) SOLICITORS: Environmental Defender's Office (Northern Rivers)

FIRST RESPONDENT: LEGAL REPRESENTATIVES: R A Pepper (barrister) SOLICITORS: Department of Environment and Climate Change

SECOND RESPONDENT: D P Wilson (barrister) SOLICITORS: Bourke Love McCartney Young Solicitors

JUDGMENT:

• 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DOUGLAS AND SUSAN ANDERSON ON BEHALF OF NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION v DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE & ANOR [2008] NSWLEC 299

1 HIS HONOUR: On 3 October 2007, the Director-General of the Department of Environment and Climate Change, the first respondent, granted a permit to the second respondent, North Angels Beach Development Ballina Pty Limited, to disturb or remove Aboriginal objects on land and granted consent to destroy, deface or damage Aboriginal objects pursuant to ss 87 and 90 of the National Parks and Wildlife Act 1974. 2 On 14 March 2008, Douglas and Susan Anderson brought proceedings in the Court for a declaration that the permit and consent were invalid, together with consequential relief. The proceedings were heard by me over three days in April 2008 and in a reserved judgment on 3 June 2008 I dismissed the application for relief but reserved the question of costs. Both of the respondents now seek an order that the Andersons pay their costs of the proceedings. 3 In the principal proceedings the Andersons relied upon five grounds. Grounds 1, 2 and 5 were that the Director-General failed to give proper, genuine and realistic consideration to the cultural significance of the land and Aboriginal objects, to intergenerational equity and to the opinions of the Andersons. Ground 3 was that the Director-General's decision was manifestly unreasonable and/or illogical, and/or irrational due to a failure to make inquiries. Ground 4 was that the Director-General's decision was affected by bias. By applying settled principles of judicial review, I found that the Andersons had failed to establish any of the grounds upon which they relied. 4 The power of the court to make an order for costs is found in s 98 of the Civil Procedure Act 2005. That section states that costs are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent costs are to be paid. The power is, however, subject to rules of court. Rule 42.1 of the Uniform Civil Procedure Rules 2005 states that if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. The rule expresses the common law position that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred; see Latoudis v Casey (1990) 170 CLR 534 at 567. An order for costs is made not to punish the unsuccessful party but to compensate the successful party for the expense to which it has been put by the legal proceedings. 5 Rule 4.2 of the Land and Environment Court Rules 2007 provides, however, that the Court may decide not to make an order for costs for the payment of costs against an unsuccessful applicant in proceedings if it is satisfied that the proceedings have been brought in the public interest. This rule reflects the leading case of Oshlack v Richmond River Council (1998) 193 CLR 72. In that case, the High Court affirmed the usual or general rule that costs follow the event - per Brennan CJ at [3], Gaudron and Gummow JJ at [35], McHugh J at [66], and Kirby J at [134.5]. The position is succinctly explained by McHugh J at [66] (Brennan CJ concurring): By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. 6 The High Court also held, however, that the categorisation of litigation as concerned with public rather than private rights was not an irrelevant consideration in the exercise of the court's discretion as to costs. 7 The High Court declined to disturb the judgment of the trial judge, Stein J, who although characterising the nature of the litigation as concerned with public rather than private rights, held that something more than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs (per Gaudron and Gummow JJ at [49]). Kirby J said (at [134.6]): Courts, while sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation.

8 In a decision to similar effect, Gummow J held in Council of the Municipality of Botany v Secretary Department of the Arts, the Environment, Tourism and Territories (1992) 34 FCR 412 at 416-417; 76 LGRA 213 at 217, that the public interest nature of the litigation alone does not deprive the successful party of an order for costs. His Honour's reasoning was followed and adopted by Northrop, Burchett and Hill JJ in Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 at 188; 99 LGERA 140 at 142. 9 These principles have been consistently applied in this Court, most recently by Biscoe J in Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v New South Wales Minister for Planning (No 2) [2008] NSWLEC 272. His Honour held at [11] that although these cases pre-date the making of r 4.2 of the Land and Environment Court Rules, the practical application of the new rule would not be different from the pre-existing position. That is, in most cases one would expect it would also be necessary to establish special circumstances additional to the public interest in order to enliven the discretion. 10 As I held in Engadine Area Traffic Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365, special circumstances may be the consideration of a novel matter involving the proper interpretation and future administration of legal issues of general significance. 11 I acknowledge the force of the submissions on behalf of the Andersons that the Court has been conferred with wide powers to grant civil remedies for breaches of environmental laws, that the open-standing provisions are designed to enable public interest litigants to have access to the Court to enforce environmental laws, and the threat of an adverse costs order is one of the greatest deterrents to litigants seeking to bring public interest litigation. However, as Biscoe J noted in Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v New South Wales Minister for Planning (No 2) at [7], the usual costs order provides an incentive to act carefully in a measured way and it provides a measure of protection to those against whom proceedings have been brought. 12 I reject any submission on behalf of the Andersons that the new rule effects a change to the pre-existing position so that if proceedings have been brought in the public interest, that fact alone may be the governing consideration. If it were the intention of the rule to effect such a change then one would have expected the rule to expressly say so. Accordingly, the fact that proceedings may have been brought in the public interest remains but one factor amongst all the circumstances of the case to be considered when exercising the discretion as to costs. In short, the new r 4.2 of the Land and Environment Court Rules gives statutory recognition to the judgments in the High Court in Oshlack, namely that the categorisation of proceedings as public interest litigation is a relevant consideration in the exercise of the court's discretion as to costs, but it is not the only consideration. Oshlack remains binding upon me, so there has to be in addition some other special circumstance to justify a departure from the general rule that the successful litigant is entitled to an order for costs. The new rule does not change the position. 13 I am prepared to accept, as did Biscoe J in the previous Anderson case at [29], that these proceedings were brought in the public interest. The Andersons brought the present proceedings under the open standing provision of s 176A of the National Parks and Wildlife Act. They were seeking to protect Aboriginal cultural heritage and to enforce public law obligations. The case was not brought to protect the private interests of the Andersons and they had no pecuniary interest in the outcome of the proceedings. 14 These considerations do not however displace the primary presumption that the unsuccessful party should pay the successful party's costs in this case. The countervailing considerations which persuade me that the usual order for costs should be made are, firstly, despite raising the question of intergenerational equity, the proceedings did not involve any real or substantial question of the proper interpretation of legal questions of general significance. On the contrary, the case involved the application of settled principles of administrative law to the facts of the case. Secondly, the case on its facts was not a particularly strong one, for seldom has a decision maker gone to such lengths to ensure that every conceivable consideration was taken into account including affording the Andersons themselves the fullest opportunity of making submissions and having them taken into account before any determination was made. Thirdly, the Aboriginal community was divided as to whether the permit and consent should be granted. The Local Aboriginal Land Council had agreed to the permit and consent being issued. 15 As I noted in the principal judgment, the Court's function was limited to considering the process by which the Director-General's decision was made and whether in doing so the Director-General acted in accordance with the law. The concerns of the Andersons, although no doubt genuinely held, about the merits of the decision, were irrelevant. 16 The order of the Court is that the applicants are to pay the costs of the first respondent and the costs of the second respondent including the costs of this hearing on costs. I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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