Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning

KEY ISSUES: Costs :- judicial review proceedings in Class 4 of Court's jurisdiction - Court's power not to award costs against an unsuccessful applicant who has brought proceedings in the public interest.

Environmental Planning and Assessment Act 1979, ss 4, 79C(1)(e), 123 Fisheries Management Act 1994 (NSW), s 282 Heritage Act 1977 (NSW), s 153 Land and Environment Court Act 1979 (NSW), s 39(4) Land and Environment Court Rules 2007 (NSW), r 4.2 LEGISLATION CITED: Local Government Act 1993 (NSW), s 674 National Parks and Wildlife Act 1974 (NSW), ss 90, 176A Native Vegetation Act 2003 (NSW), s 41 Protection of the Environment Operations Act 1997 (NSW), s 252 Threatened Species Conservation Act 1995 (NSW), s 147 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Wilderness Act 1987 (NSW), s 27

Anderson v Ballina Shire Council [2006] NSWLEC 76 Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Anderson & Anor v Director-General of the Department of Climate Change & Anor [2008] NSWLEC 182 Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120 Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 Drake-Brockman v Minister for Planning (No 2) [2007] NSWLEC 777 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 Harvey v Minister Administering the Water Management Act 2000 (No 2) [2008] NSWLEC 213 Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Liversidge v Anderson [1942] AC 206 Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 Markisic v Department of Community Services NSW [2006] NSWCA 106 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 Minister for Planning v Walker [2008] NSWCA 224 Oshlack v Richmond River Council (1998) 193 CLR 72 Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 O'Sullivan v Farrer (1989) 168 CLR 210 Plumb v Penrith City Council (2003) 126 LGERA 109 Project 28 Pty Ltd v Barr [2005] NSWCA 240 Richmond River Council v Oshlack (1996) 39 NSWLR 622 Save the Ridge Inc (Association No A03329) v Commonwealth & Anor (2006) 230 ALR 411 (FC/FCA) Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 South Melbourne City Council v Hallam [No 2] (1994) 83 LGERA 307 South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 154 ALR 411 Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150

TEXTS CITED: Australian Law Reform Commission Report No 78, "Beyond the Door-keeper: Standing to Sue for Public Remedies" (1996)

APPLICANT: Ms B. Nolan SOLICITORS: Environmental Defender's Office Ltd

FIRST RESPONDENT LEGAL REPRESENTATIVES: Ms R. Pepper SOLICITORS: Department of Planning

SECOND AND THIRD RESPONDENTS: No appearance SOLICITORS: N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ANDERSON & ANOR ON BEHALF OF NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION v NSW MINISTER FOR PLANNING AND ORS (NO 2)

JUDGMENT 1 HIS HONOUR: This matter concerns the Court's power not to award costs against an unsuccessful applicant who has brought the proceedings in the public interest.

2 The applicants, Douglas and Sue Anderson, unsuccessfully challenged the validity of a development consent for a housing subdivision issued by the first respondent, the Minister for Planning, at Angels Beach Drive, East Ballina: Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120. The Minister now says that the applicants should pay his costs in accordance with the usual "loser pays" costs rule. The applicants submit that they brought the proceedings in the public interest such that departure from the usual costs rule, by making no order as to costs, is justified.

3 The applicants are Aboriginal elders of the Numbahjing Clan within the Bundjalung Nation. They brought the proceedings in the interests of the protection of sites in the location of the approved housing subdivision of great significance to some Aborigines culturally and as an area through which Aboriginal people fled from massacre in the 1850s. The site contains Aboriginal objects and the applicants assert that it also contains remains of their ancestors. Mr Anderson believes that the land is a very sacred site to his family and to the Bundjalung Nation and that, based on what his grandfather told him, his grandfather took his family there to camp when the tribes met in the Angels Beach area.

4 The dispute initiated by the applicants engendered a course of litigation which involved no less than seven proceedings in this Court, in five of which they succeeded. The cases related to development consents granted by the Minister or the local council or related to permits to destroy Aboriginal objects under s 90 of the National Parks and Wildlife Act 1974 (NSW) granted by the Director-General of the Department of Environment and Conservation (later the Department of Environment and Climate Change). The mixed success which the applicants experienced in the litigation which the dispute engendered was as follows. First, they succeeded on a challenge to the validity of a development consent issued by Ballina Shire Council in 2004: Anderson v Ballina Shire Council [2006] NSWLEC 76 (Cowdroy J). Secondly, they succeeded before me on an application to have the Minister's 2005 development consent declared void: Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. Thirdly, they failed in these proceedings to have the Minister's further development consent in 2006 declared void: see [2] above. Fourthly, they succeeded on an application to have the first s 90 permit declared void: Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 (Pain J). Fifthly, on 28 November 2006, this Court, by consent, declared a second s 90 permit void. Sixthly, on 15 August 2007, this Court made a consent order allowing the Director-General to withdraw a third s 90 permit. Finally, the applicants failed on an application to have a fourth s 90 permit declared void: Anderson & Anor v Director-General of the Department of Climate Change & Anor [2008] NSWLEC 182 (Lloyd J). There Lloyd J concluded his judgment by observing that it would normally follow that a costs order should be made in favour of the successful respondent but reserved costs to give the applicants an opportunity to make submissions to the contrary.

Land and Environment Court Rules 2007 r 4.2(1) 5 The current legislative costs regime applicable to public interest proceedings in Class 4 of the Court's jurisdiction was summarised in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 at [21] by me as follows: The Courts Legislation Amendment Act 2007 and related amendments altered the provisions relating to costs in the Land and Environment Court with effect from 28 January 2008. In effect, they replaced s 69 of the Land and Environment Court Act 1979 with s 98 of the Civil Procedure Act 2005 and, in relation to Class 4 proceedings, r 42.1 of the Uniform Civil Procedure Rules 2005 and r 4.2 of the Land and Environment Court Rules 2007 . Section 98(1)(a) provides that subject to the rules of court and any Act, costs are in the discretion of the court . UCPR 42.1 provides: Subject to this Part, 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 new LECR 4.2(1) provides that: The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest . These provisions continue the basic position in Class 4 proceedings that costs are in the discretion of the court, the usual order is that costs follow the event, and one factor affecting the discretion is whether the proceedings have been brought in the public interest: Harvey v Minister Administering the Water Management Act 2000 (No 2) [2008] NSWLEC 213 (Jagot J). 6 The new r 4.2 of the Land and Environment Court Rules 2007 came into force on 28 January 2008. There is no analogous provision in any other jurisdiction. It provides as follows: 4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

(2) The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent's costs if it is satisfied that the proceedings have been brought in the public interest.

(3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to: (a) the injunction or order sought by the applicant, or (b) an undertaking offered by the respondent in response to the application, if it is satisfied that the proceedings have been brought in the public interest 7 By empowering the Court not to make an order for the payment of costs against an unsuccessful applicant, the new r 4.2(1) acknowledges that the usual "loser pays" costs rule is to the contrary. The usual rule is expressed in r 42.1 of the Uniform Civil Procedure Rules 2005, quoted at [5] above. The usual award of costs to the winner in civil litigation is made not to punish the loser but because it is just and reasonable, as between the parties, to compensate the winner by way of a partial indemnity against the expense to which the winner has been put by reason of the litigation: Latoudis v Casey (1990) 170 CLR 534 at 567; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67]. The indemnity is only partial because, ordinarily, costs are awarded not on an indemnity basis but on a party and party basis. The usual costs order has been said to provide "a bridle against lack of restraint in taking points that are hardly arguable or not arguable at all and against other possible excesses in the conduct of the litigation. It provides a measure of protection to those involved in litigation and to the Court itself against unscrupulous attempts to manipulate the system. It provides an incentive to act carefully in an measured way": Markisic v Department of Community Services NSW [2006] NSWCA 106 at [16], quoting Project 28 Pty Ltd v Barr [2005] NSWCA 240 at [112]. However, those considerations do not explain why the usual costs order is made against a losing party even it has almost won and has acted as a model litigant: Latoudis at 567, quoted in Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150 at [72] (CA).

8 The new r 4.2(1) is not a mere formulation of the pre-existing case law. Previously, in the absence of any costs rule expressly dealing with public interest proceedings, the courts adopted the general principle that the public interest has to be served by the litigation and there has to be an additional factor contributing to a finding of special circumstances which justifies departure from the usual costs order. The leading case is Oshlack v Richmond River Council (1998) 193 CLR 72 at [49], which was reinforced by the High Court in South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 154 ALR 411, (1998) 101 LGERA 114. Examples of the application of the principle in favour of the unsuccessful applicant include Oshlack, where the High Court upheld Stein J in Oshlack v Richmond River Shire Council (1994) 82 LGERA 236; Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [18] - [19] (Lloyd J); and Plumb v Penrith City Council (2003) 126 LGERA 109 (Pearlman J). Examples of the application of the principle against the unsuccessful applicant include Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254 (Pearlman J); Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 at [17] (Talbot J); Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718 (Lloyd J); Save the Ridge Inc (Association No A03329) v Commonwealth & Anor (2006) 230 ALR 411 (FC/FCA); Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 (Jagot J); and Drake-Brockman v Minister for Planning (No 2) [2007] NSWLEC 777 (Jagot J). Some of the earlier cases in this Court adopting the principle were collected in Richmond River Council v Oshlack (1996) 39 NSWLR 622 at 632-633.

9 The additional factor may be found in the raising of arguable, novel legal issues of general significance (e.g. Oshlack (1998) 193 CLR 72 at [20]). Hence, the costs outcome may depend on whether the applicant had the good fortune to find such a novel legal issue or the misfortune to have to rely on conventional legal arguments. That is a matter of chance and is entirely irrelevant to a public interest litigant's motivation for bringing the proceedings. Departure from the usual costs order is a concession to the public interest litigant.

10 Yet even the general principle that there has to be something more than the public interest is not rigid; for the nature of the public interest, of itself, may be of such moment or magnitude as to be sufficient to depart from the usual order as to costs. As noted in Oshlack (1998) 193 CLR 72 at [42], Liversidge v Anderson [1942] AC 206 at 283 is a celebrated example of "a matter of very general importance" - the liberty of the subject in time of war - in which it was inappropriate for the successful defendant (the Secretary of State) to seek costs against the incarcerated, unsuccessful plaintiff. There was no suggestion that any additional factor was necessary.

11 The new LECR r 4.2(1) does not prescribe that, in addition to the public interest, there must be a factor leading to the conclusion that there are special circumstances justifying departure from the usual costs rule. Hence, such special circumstances are not a mandatory prerequisite to the exercise of the discretion to depart from the usual order as to costs in public interest cases. However, in my opinion, the discretion under the new rule is only enlivened if departure from the usual costs order is justified. The public interest consideration alone may be of such moment or magnitude as to ground that justification. An example might be an unsuccessful proceeding, based on a good arguable case, brought to stop or limit the development of one of the last habitats of an endangered species. In most cases, however, I expect it would also be necessary to establish special circumstances additional to the public interest in order to enliven the discretion. In such cases the practical application of the new rule would not be different from the pre-existing position. For example, in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 the case properly proceeded upon the common ground that special circumstances had to be shown. The public interest 12 What is meant by "the public interest"? The wide use of the concept in legislation and its meaning were analysed in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at [8] - [12] per Tamberlin J: [8] The reference to the public interest appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression.

[9] The expression in the public interest directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances. [10] The expression the public interest is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination. By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case. [11] The indeterminate nature of the concept of the public interest means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination. In this respect, the well-known observations of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion, however, the approach is relevant in the present case. His Honour said: In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. [12] The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that the public interest can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations. 13 "The public interest" is a nebulous concept unless given further content of a legally normative nature: Oshlack v Richmond River Council (1998) 193 CLR 72 at [30] per Gaudron and Gummow JJ. Much civil litigation concerns the public interest, including most constitutional and administrative law matters and some ordinary civil actions: Oshlack at [71] per McHugh J. If characterisation as public interest litigation were sufficient reason to depart from the usual order as to costs, that order would cease to be usual in large areas of litigation. The expression "in the public interest" requires a consideration of the subject matter, scope and purpose of the statutory enactment in which it is contained: O'Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

14 There is no question that protection of the environment is a matter of public interest. Section 4 of the EPA Act defines "environment" broadly as including "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155 Mason CJ acknowledged "the public interest in avoiding injury to the environment". That proposition is illustrated by Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473. There a mining warden had recommended that an application for mining leases over 1,100 acres of Fraser Island be granted. That recommendation was a prerequisite to the granting of a mining lease. The warden was under a statutory duty to recommend that the application be refused if he was of the opinion that the public interest would be prejudicially affected by the granting of the application. At the hearing before the warden, an objector adduced expert evidence of damage to the environment that the mining was likely to cause. The High Court held unanimously that the warden had failed to hear the application according to law and ordered that a writ of mandamus be directed to him. Barwick CJ (Stephen and Murphy JJ agreeing) held at 480: "Clearly enough, the material evidenced by the appellant did relate to a public interest not limited to the interests of a less than significant section of the public". Jacobs J held at 487: The public interest is an indivisible concept. The interest of a section of the public is a public interest but the smallness of the section may affect the quantity or weight of the public interest so that it is outweighed by the public interest in having the mining operation proceed. It does not however affect the quality of that interest. The warden looked for what he described as the public interest as a whole and he did so in contradistinction to the interest of a section of the public. Moreover, he limited the area of public interest to the section of the public who propounded the views expressed by the objector. This was not permissible. The views may have been propounded by a section of the public but the matters raised went to the question of the interest of the public as a whole. The warden appears not to have given weight to the fact that the evidence produced by the objectors should be regarded as evidence on the public interest generally and needed to be weighed in all the circumstances of the public interest whether or not the evidence and the views therein were put forward by a large or a small section of the public. 15 In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [15] Lloyd J identified several matters that may be considered in determining whether proceedings can be categorised as having been brought in the public interest, as follows:

(a) the public interest served by the litigation; (b) whether that interest is confined to a relatively small number of people in the immediate vicinity of a development, or whether the interest is wide; (c) whether the applicant sought to enforce public law obligations; (d) whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and (e) whether the applicant has no pecuniary interest in the outcome of the proceedings. 16 Proceedings "brought in" the public interest, in my opinion, would include litigation undertaken by a private individual or community group where the dominant purpose is not to protect or vindicate a private right or interest but to benefit the public. However, where protection or vindication of a private right or interest is also involved, that may well be a discretionary reason not to depart from the usual order as to costs: e.g. see Harvey v Minister Administering the Water Management Act 2000 (No 2) [2008] NSWLEC 213 at [7] (Jagot J).

Public interest litigation in the Land and Environment Court 17 The applicants submit that the new rule 4.2(1) is designed to overcome impediments to access to the Court imposed by the usual order as to costs and provides an opportunity to redress the same imbalance. The submission requires some analysis, which the applicants undertook, of the role of public interest litigation in this Court.

18 The public interest is woven into the fabric of the Land and Environment Court in a number of ways.

19 First, the public has an interest in ensuring that government decision-makers are accountable, that their decisions are made in accordance with the law, and that legislation that creates public rights and duties is obeyed. These are interests which must be capable of protection when necessary, through litigation: see Australian Law Reform Commission Report No 78, "Beyond the Door-keeper: Standing to Sue for Public Remedies" (1996). 20 Secondly, third party enforcement of environmental laws is a key theme of the legislative reforms that created the Court in 1980. Open standing provisions in a number of Acts permit, indeed encourage, the public to bring proceedings to hold public bodies and others to account in this Court by way of an order to remedy or restrain a breach of the Acts or regulations: e.g. Environmental Planning and Assessment Act 1979 (EPA Act) s 123; Local Government Act 1993 s 674; Protection of the Environment Operations Act 1997 s 252; Threatened Species Conservation Act 1995 s 147; National Park and Wildlife Act 1974 s 176A; Heritage Act 1977 s 153; Fisheries Management Act 1994 s 282; Wilderness Act 1987 s 27; Native Vegetation Act 2003 s 41. Third party enforcement of environmental laws and participation in environmental decision-making was emphasised in the Second Reading Speech for the suite of legislation introduced in 1980, which included the Act that created this Court (Hansard, volume 150, p 3048): The bills will confer equal opportunity on all members of the community to participate in decision-making under the new legislation concerning the contents of environmental studies; the aims and objectives to be adopted by draft environmental planning instruments; the contents of draft planning instruments development applications requiring prior publicity before determination; development applications for designated developments; and environmental impact statements prepared and published in accordance with part V of the Environmental Planning and Assessment Bill. Additionally, objectors to applications for designated development can appeal to the Land and Environment Court against the grant of development consent. Members of the public are given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws.

21 Thirdly, read in the context of the objects of the EPA Act, the Court's task is to administer social justice in the enforcement of the legislative scheme, a task that travels far beyond administering justice inter partes: F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 313 per Street CJ. The EPA Act and the Land and Environment Court Act 1979 are companion statutes which place upon the Court a wide ranging responsibility for protection of the environment and a commensurate wide-ranging and exclusive jurisdiction "to determine how, in the public interest and in the interests of the parties and other affected or interested persons, particular dispute situations should be resolved": Hannan at 310. In merit appeals the Court is expressly required to have regard to the public interest: Land and Environment Court Act 1979 s 39(4). Similarly, s 79C(1)(e) of the EPA Act requires a consent authority in determining a development application to take into consideration the public interest so far as relevant. If, in a merit appeal to the Court concerning a s 79C decision, the Court found that public interest issues (which include issues relevant to ecologically sustainable development) arose but declined to have regard to those issues, that would be an error of law: Minister for Planning v Walker [2008] NSWCA 224 at [43].

22 Fourthly, public interest cases have been of fundamental importance in this Court in construing legislation and defining the obligations of both the public and private sectors.

23 The threat of an adverse costs order is a large deterrent to litigants seeking to bring public interest litigation. Open standing provisions are of little utility if the plaintiff will be bankrupted should the proceedings fail. Public interest litigants must shoulder their own cost burdens, but, unlike private interest litigants, do not have a prospective financial gain. Therefore, without legal aid funding (where an indemnity is provided by the Legal Aid Commission) the risk of an adverse costs order is a greater deterrent for public interest litigants than for private interest litigants.

24 Take the present case. The applicants have succeeded in most of their litigation proceedings generated by their concern as Aborigines in relation to the subject land (see [4] above), and that success has been in the public interest. In most of those proceedings, the applicants were represented not by lawyers but by an agent (as permitted by the rules of this Court). Where the applicants have been successful and obtained costs orders against the Minister or other public body, the costs order has had little effect on the respondent because the applicants have incurred no costs for lawyers. Now the tables are turned. The applicants have lost this particular case. If the Minister obtains a costs order against them it will be substantial and there is every prospect that it will deter them from pursuing public interest litigation (should they be minded to do so), however meritorious or important to the applicants as Aborigines, or it will deter them from appealing against adverse decisions notwithstanding that an appeal is reasonably arguable.

25 All this has to be balanced against the fact that public interest litigation engenders costs for the successful respondent and that the purpose of the usual costs order is to compensate the successful respondent for those costs, as a matter of fairness between the parties.

26 There is a case for protection in this Court of an unsuccessful genuine public interest litigant, who brings a good arguable case, against an adverse costs order in unsuccessful proceedings which seek to hold public authorities to account. One consideration is that the successful public respondent should have an interest in the resolution of any legal uncertainty in respect of the power it exercises. However, such protection would require legislative reform because the courts have turned their face against making special costs rules for public authorities where proceedings are brought in the public interest: Oshlack at [91] - [92], [97]; South Melbourne City Council v Hallam [No 2] (1994) 83 LGERA 307 at 310-311 (SC Vic/CA).

27 Where a body is set up to pursue causes which may be in the public interest, "it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded": per Gummow J in Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 416, 76 LGRA 213 at 218 quoting and agreeing with Burchett J in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171, (1988) 76 LGRA 381 at 386; quoted also in Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 at [15] (Talbot J). Kennedy was such a case. Mr Kennedy was a representative of a group, the Sandon Point Aboriginal Tent Embassy. Although the group comprised Aboriginal persons with a particular interest in the artefacts the subject of the consents which it unsuccessfully challenged, it was not an Aboriginal clan which had a special relationship with the site. In Kennedy the Court declined to depart from the usual order as to costs, finding that there were insufficient circumstances to do so and that Mr Kennedy was the author of his own misfortune. When Mr Kennedy returned to the fray, this time in his own right as a concerned Aboriginal person, and again lost, Jagot J held in Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 that the proceedings had been brought in the public interest but found no special circumstances and declined to depart from the usual order as to costs.

28 A distinction may be drawn between a body set up to pursue issues which may be in the public interest, on the one hand, and an Aboriginal clan which seeks to protect a site with which it has a special relationship, on the other. The Kennedy cases, which were decided prior to the advent of the current LECR r 4.2, fall within the first category, notwithstanding that they involved Aboriginal artefacts of significance to some Aborigines. Historically, there has been a special relationship between Aboriginal clans and particular lands which has endured the dispossession of the Aboriginal people, described in the High Court as "the darkest aspect of the history of this nation": Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 at 99 - 100, 109 per Deane and Gaudron JJ. Viewed against the background of dispossession, there is much to be said for the view that a good arguable claim by an Aboriginal clan seeking to hold a public decision-maker to account in relation to land with which the clan has (or perhaps had) a special relationship, is a claim in the public interest which is of sufficient moment that, absent countervailing circumstances, departure from the usual "loser pays" order as to costs is justified.

Conclusion 29 I accept that the present proceedings were brought in the public interest, having regard to the matters referred to at [3] above.

30 However, there are several circumstances which weigh against departure from the usual costs order. First, the weight of the public interest is diluted by the disagreement within the local Aboriginal community. The relevant Aboriginal land council, the Jali Local Aboriginal Land Council, supported the 2006 development consent; indeed, the applicants themselves initially were not opposed to it. Although the applicants entitled the Application which they filed in these proceedings so as to describe themselves as litigating on behalf of the Numbahjing Clan, the evidence does not establish what degree of support for the applicants' proceedings in fact existed within the Clan. Secondly, the points raised were not "eminently" arguable: Drake-Brockman at [13] citing Oshlack (1994) 82 LGERA 236 at 245 per Stein J. Rather, a number of the points raised were a re-agitation of points which had failed in the earlier proceedings concerning the 2005 development consent or were no longer enlivened, and generally the applicants' case was not strong. Thirdly, there is no factor additional to the public interest, such as breaking new ground on a matter of legal principle, amounting to special circumstances. The unsuccessful challenge to the development consent was on three conventional administrative law grounds: failure to consider mandatory relevant matters, denial of procedural fairness and manifest unreasonableness. Having regard to these considerations, I decline to exercise my discretion to depart from the usual "loser pays" costs order.

31 The order of Court will be that the applicants are to pay the first respondent's costs of the proceedings.

03/10/2008 - Typographical error - Paragraph(s) 11

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