Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment

The licence applications

1. The applications for licences that were the subject of the appeals to the Court were made to the Department on 16 September 2022. But those applications were made because the Department had refused to determine earlier applications that Aussie Ark had made and Aussie Ark was out of time to appeal against the deemed refusal of those applications. The Department also refused to consider or determine the re-submitted applications for licences, but this time Aussie Ark was able to appeal against the deemed refusal of the re-submitted applications. This conduct of refusing to deal with Aussie Ark's applications for licences is the circumstance Aussie Ark relies on for the purposes of r 3.7(3)(c) of the Court Rules. I will set out the facts concerning this conduct of the Department.
2. Aussie Ark first applied for licences concerning the Broad-toothed Rat and the Broad-headed Snake on 16 July 2021 and 13 January 2022 respectively. Although the Department commenced assessment of both applications, including requesting further information, on 22 March 2022, Ms Harrup of the Department wrote to Mr Faulkner of Aussie Ark advising that the Department would no longer be considering the applications. In the letter, Ms Harrup noted that between 19 March 2021 to 13 January 2022, Aussie Ark had lodged 12 biodiversity conservation licence applications with the Department seeking licences to transport protected animals, including threatened species, by removing them from the wild and utilising them as founder animals for captive breeding programs. Two of the 12 species were the Broad-toothed Rat and the Broad-headed Snake.
3. Ms Harrup asserted that Aussie Ark "remains non-compliant with licencing requirements in relation to a number of the species listed above". Ms Harrup, based on her interpretation of correspondence from Aussie Ark (which interpretation is said to be incorrect by Aussie Ark) stated: "Aussie Ark has advised DPE that it has collected and is possessing animals without authority, which are serious offences that will now be investigated as part of a review of the compliance of Aussie Ark with the BC Act and the Biodiversity Conservation Regulation 2017. This review will include, among other things, the alleged unlawful capture and possession of protected animals from the wild, in particular the species listed above. Depending on the outcome of our investigation and review, compliance action may be taken against Aussie Ark."
4. That the Department advised that it was investigating potential non-compliances with licensing requirements was proper and in accordance with the Department's responsibilities to administer the BC Act. It was what followed that advice where the Department acted not in accordance with the BC Act.
5. Ms Harrup stated the Department had suspended assessment of Aussie Ark's licence applications: "Any BC Act licence application submitted by or on behalf of you, Aussie Ark or the Australian Reptile Park related to the capture and possession of animals from the wild will not be considered further until completion of our investigation and review…The Department also wishes to advise you that current or outstanding correspondence between DPE and Aussie Ark relating to the 12 species listed above will be suspended until further advised."
6. On 29 March 2022, Mr Faulkner, Managing Director of Aussie Ark, replied to the Department's letter of 22 March 2022. Among addressing other matters, Mr Faulkner stated that "DPE's refusal to consider further BCA licence applications 'until completion of our investigation and review' seems to be illegal. It is DPE's legal obligation to administer the BCA. Please advise DPE's authority and reasons for this decision".
7. The Department did not reply to Mr Faulkner advising of its authority and reasons for its decision to suspend consideration of the pending licence applications.
8. On 8 July 2022, Ms Gabriel, Deputy Managing Director of Aussie Ark, wrote to the Department, responding to the Department's letter of 22 March 2022 advising that any licence applications by Aussie Ark "will not be considered while there is an active compliance investigation underway". Ms Gabriel requested that "DPE reconsider the latter statement and proceed to determine our applications as soon as possible." Ms Gabriel set out the reasons for this request.
9. Ms Gabriel noted that 11 of the licence applications had been lodged over 12 months ago. She said Aussie Ark had understood until recently that the licence applications had been approved. She noted that the "deemed refusal period" for the application had long since passed. She said that: "Had we known that the licences were not approved, we would have commenced 'deemed refusal appeals'. The opportunity to do so has now apparently passed."
10. Ms Gabriel requested the Department determine the licence applications, even if by refusal, so that Aussie Ark can appeal to the Court: "There has been an unexplained and lengthy delay (over 12 months) by DPE in determining our conservation licence applications and now DPE is apparently refusing to exercise its statutory functions. With respect, there does not appear to be any statutory basis for DPE to refuse to consider our licence applications. We wish to resolve this present situation as soon as possible and ideally with the cooperation of DPE. We again request DPE to determine the licence applications as a matter of urgency. If DPE is not inclined to grant the conservation licences for which we have applied, we request that it issue written reasons for refusal so that we can commence merit appeals to the Land and Environment Court without further delay."
11. The Department did not respond.
12. On 16 September 2022, Aussie Ark sought to re-start the deemed refusal period by re-submitting the 12 licence applications, including for the Broad-toothed Rat originally submitted on 16 July 2021 and the Broad-headed snake originally submitted on 13 January 2022. Ms Shute, Conservation Manager at Aussie Ark, noted that pursuant to cl 2.29 of the Biodiversity Conservation Regulation 2017 (BC Regulation), "the 'deemed refusal' period for each of the current applications will commence 28 days from the date of this letter".
13. On 17 October 2022, the Department replied, noting Aussie Ark's re-submission of the licence applications, but stated that they would not be considered by the Department: "As previously advised, the Department of Planning and Environment (DPE) is currently undertaking a compliance investigation into Aussie Ark regarding alleged offences under the Biodiversity Conservation Act 2016. These licence applications cannot be determined until the results of the investigation are known."
14. The Department did not determine the licence applications lodged on 16 September 2022 within the deemed refusal period, or indeed ever. The licence applications were determined by the Court on appeal.

The appeals to the Court

1. On 12 January 2023, Aussie Ark commenced proceedings, by filing Class 1 Applications, appealing against the Department's deemed refusal of the licence applications for the Broad-toothed Rat and the Broad-headed Snake. Each application sought orders that the appeal be upheld and the biodiversity conservation licence be granted.
2. On 20 February 2023, the Department filed and served the Statement of Facts and Contentions in each proceeding. They raised the same contentions. It will suffice to quote the contentions in the appeal concerning the Broad-toothed Rat. The Department contended "that the orders sought by the Applicant should not be made for the following reasons: 1. The Application is substantively the same as an earlier application lodged on 18 July 2021 for the same species. The Application was considered a duplicate application. 2. The Application, and earlier application on 13 January 2022, contained insufficient information in order to be assessed with the Applicant answering 'N/A' for many relevant fields. Among other things, the required Translocation Plan attached with the application form contained insufficient information in relation to a breeding strategy and genetic management. 3. On 28 July 2021 the Respondent wrote to the Applicant requesting further information. A copy of this letter is attached at Annexure 1. 4. Neither the Application nor the application of 18 July 2021 were considered to have been duly made on the basis that they did not satisfy the requirements of s 2.12(1) and (2) BC Act. 5. On that basis the Respondent contends that there has been no deemed refusal of the Application. 6. The illegal collection of Broad Toothed Rats from the wild is a key threat to this species. There is a need to closely scrutinise any application to collect individuals from the wild. 7. On 19 November 2021 the Respondent sent an Advisory Letter to the Applicant in relation to licensing applications and collection of animals from the wild. A copy of that letter is attached as Annexure 2. 8. On 21 December 2021 the Respondent sent a Warning letter to the Applicant in relation to these same matters. A copy of that letter is attached Annexure 3. 9. The Applicant had advised the Respondent that it intended to collect individuals from the wild pursuant to what it maintained was a verbal approval to do so. The Respondent wrote to the Applicant on 22 March 2022 to advise that this was not authorised and that all licence applications currently submitted by it were being placed on hold pending the outcome of a review of these applications and the resolution of a regulatory investigation. A copy of that letter is attached at Annexure 4."
3. The letter referred to in paragraph 9, and forming Annexure 4, is the letter from Ms Harrup of the Department to Mr Faulkner of Aussie Ark dated 22 March 2022.
4. Although framed as the "reasons" for the Court not to uphold the appeal and to refuse the licence application, instead of contentions, they fall into the following categories: 1. The licence application the subject of the appeal is substantially the same as the previous application. The legal consequence of this contention is not explained. Presumably it is that the application and appeal is an abuse of process. 2. The licence application contained insufficient information in order to be considered. The contention is silent as to who was unable to assess the licence application because it contained insufficient information. In the context of paragraph 2 itself, as well as paragraphs 3 and 4 which seem to follow on from paragraph 2, the person whose assessment is disabled by the insufficiency of information in the application would seem to be the Department, not the Court. If so, the legal consequence of this contention for the Court hearing and determining the appeal is not explained. Presumably, the legal consequence is what was pleaded in paragraphs 3 and 4. 3. The licence application was not duly made as it did not satisfy the requirements of s 2.12(1) and (2) of the BC Act. The legal consequence of this is not explained in paragraph 3, but presumably it is what is stated in paragraph 4. 4. As the licence application had not been duly made, there has been no deemed refusal of the application. The legal consequence of this contention is not explained. Presumably, it is that the appeal is incompetent as there has been no deemed refusal of the licence application against which an appeal can be made, and the Court would lack jurisdiction to hear and dispose of the appeal. 5. Illegal collection of Broad-toothed Rats from the wild is a key threat to the species, so that there is a need to closely scrutinise the application to collect individuals from the wild. This contention is illogical. The application Aussie Ark had made was for a licence authorising the collection of Broad-toothed Rats from the wild. If granted, there would be no "illegal collection" of Broad-toothed Rats from the wild. Otherwise, the legal consequence of this contention for the Court hearing and disposing of the appeal is not explained. 6. The licence application has been placed on hold pending the resolution of a regulatory investigation into the alleged unlawful conduct of Aussie Ark in collecting animals from the wild. The legal consequence of this contention for the Court hearing and determining the appeal is not explained.
5. On 7 March 2023, Aussie Ark filed and served a Statement of Facts and Contentions in Reply contesting each of the Department's contentions. Aussie Ark's solicitors, in the covering letter serving the Statement of Facts and Contentions in Reply, stated that the Department's Statement of Facts and Contentions filed on 20 February 2023 was inadequate in a number of identified respects. One was the failure to provide particulars of the contentions. A second was raising a legal issue that contends that the Court is precluded from determining the proceedings one way or another, but failing to identify the factual matters on which this contention was based. A third was the failure to raise any merit issues as a contention. A fourth was that the contentions as pleaded fail to comply with the Court's practice note.
6. On 24 March 2023, the Department's in-house lawyer noted "our disagreement" with each of the assertions in Aussie Ark's solicitor's letter of 7 March 2023. The Department's lawyer asserted: "The Respondent has identified the real issues in dispute. There may be scope to particularise these contentions further, and you may disagree with them, but it is appropriate for the Respondent to raise those matters that it considers to be contentions."
7. Although acknowledging scope for particularising the Department's contentions, the Department did not seek to amend its contentions so as to provide particulars of any contention. Instead, the Department's lawyer merely said: "Should you require further particulars of this contention we will provide them".
8. In response to the assertion that the Department had not raised any merit issues in its contentions, the Department's lawyer stated: "This is an assertion by the Applicant without any basis. The Respondent has raised those issues it considers to be merit issues and which, as you are well aware, it has been canvassing with your client for some time."
9. On 28 March 2023, Aussie Ark's solicitor replied stating that the Department had not addressed the concerns raised in the previous letter. In relation to the particulars of the contentions, the solicitor said it was the Department's responsibility to provide particulars of its contentions, not the applicant's responsibility to request particulars. In relation to merit issues, the solicitor noted that the Department had confirmed that the "merit issues" it had raised were only those stated in the contentions and no others.
10. The Department did not respond to that letter and did not seek to amend its contentions by providing particulars or otherwise.
11. The next event in relation to the pleadings occurred when the Department served its affidavit evidence of Mr Foster dated 14 July 2023 and Ms lzquierdo dated 17 July 2023. Aussie Ark's solicitor wrote to the Department on 2 August 2023 expressing concern that the evidence raised matters not contained in the Department's Statement of Facts and Contentions. The solicitor identified that the affidavits raise 18 additional issues not pleaded as contentions in the Department's Statement of Facts and Contentions. The solicitor requested the Department to "confirm that the only issues to be determined by the Court are those that are set out in SOFAC" and to "confirm it will not seek to read those paragraphs in the affidavits of Foster and Izquierdo that relate to issues not set out in the SOFAC". The solicitor noted that "we require a response within 3 days failing which we are instructed to relist the matter".
12. On 10 August 2023, the Department's lawyers replied to the letter of 2 August 2023. In language unnecessarily combative, such as accusing Aussie Ark of being "disingenuous", the Department's lawyers contested Aussie Ark's assertion that the Department's affidavit evidence raised matters not contained in the Department's Statement of Facts and Contentions. Nevertheless, the Department sought Aussie Ark's consent for the Department to file an Amended Statement of Facts and Contentions: "Notwithstanding our client's view that the position your client now takes in relation to the SOFACs is unhelpful to the Court and unnecessarily adversarial, we have prepared Amended SOFACs to address your concerns - attached. We seek your client's consent for the amended SOFACs to be filed with the Court."
13. I will address the Amended Statement of Facts and Contentions attached to the Department's letter in a moment after I recount Aussie Ark's solicitor's response by letter dated 14 August 2023. The solicitor properly took issue with the combative language in the Department's letter but nevertheless dealt with each of the points made in the letter. In relation to the point that the Department's affidavits raised issues not included as contentions, the solicitor stated: "4. In your letter, you describe our client's position in relation to the SOFACs as 'unhelpful to the Court and unnecessarily adversarial.' Commentary such as this and particularly from a State Government is surprising and unwarranted. The Statement of Facts and Contentions are akin to pleadings. The parties are required to identify each fact, matter and circumstance they contend should require or should cause the Court to uphold or dismiss the appeal. For example, where a party contends there is insufficient information to assess any relevant matter, the information should be listed. The Department's response to our request that it comply with the relevant Rules and Practice Note is to label our client as "unhelpful to the Court and unnecessarily adversarial." The Department should withdraw those comments. Our client reserves its position to bring this to the attention of the Court. 5. The Department now seeks our client's consent to significant amendments to the SOFAC. However, the Department does not explain the basis for the amendment except to suggest the Court would otherwise be led into error, nor does it offer any explanation for the delay. Firstly, we draw your attention to the Court's Practice Note Classes 1, 2 and 3 Miscellaneous Appeals and specifically paragraphs 84 to 86. The Department requires the leave of the Court to amend its SOFAC. Secondly, for our client to properly consider its response to the application, it will need to consider the affidavit evidence in support of any such application. Please provide us with the Notice of Motion and detailed affidavit as soon as possible."
14. The solicitor foreshadowed Aussie Ark making a costs application for the costs it will incur in the Department seeking leave to amend its Statement of Facts and Contentions. Although directed to the application to amend the Statement of Facts and Contentions, what the solicitor said is also relevant to the current application for costs of the proceedings: "As we have previously informed the Department, our client's appeals, including all preparation for the hearing have proceeded on the basis of the issues contained in the SOFAC. This is not a situation where our client remained silent during the course of the proceedings, nor has there been any failure on the part of our client to interrogate the position. On the contrary, our client has, from the outset, in its statement of facts and contentions in reply, made it clear that its position is that the Department has failed to provide particulars of its contentions and to identify any basis for refusing the licence applications. Our client also specifically responded to the Department's contention 2, noting that no description was given by the Department as to precisely how it alleged our client's licence application was insufficient. This was followed up by the letters dated 7 and 28 March 2023. Our client's position could not have been made clearer. Five months later, the Department seeks to amend its SOFAC. Presumably the matters now intended to be included in the SOFAC have been known and understood by the Department since the commencement of the appeal and yet the Department, for reasons which are presently unknown, has decided to amend its SOFAC, two months prior to the hearing. In our view, it was incumbent on the Department to inform us at the earliest opportunity of its intention to raise issues that had not been previously raised in its SOFAC and to seek leave to amend at that time."
15. On 18 August 2023, the Department wrote to Aussie Ark enclosing the notice of motion and supporting affidavit seeking leave to amend its Statement of Facts and Contentions, which were filed with the Court on 18 August 2023.
16. The draft Amended Statement of Facts and Contentions attached to the Notice of Motion was the same as had been attached to the Department's letter of 10 August 2023. Again, the amendments proposed to the Statements of Facts and Contentions were similar for the Broad-toothed Rat and the Broad-headed Snake. I will deal only with those for the Broad-toothed Rat.
17. Contention 1 remained the same, pleading that the licence application the subject of the appeal is substantially the same as the previous application. The legal consequence of the contention remained unexplained.
18. Contention 2, concerning the licence application containing insufficient information in order to be assessed, was amended in two material respects. The contention itself was amended to state expressly that the person whose assessment was disabled by the insufficiency of information in the application was "the Respondent" (the Department). This was implied in the original paragraph 2 of the Statement of Facts and Contentions, but now was made express.
19. The second material respect in which paragraph 2 was amended was by including particulars identifying the respects in which the application was said to be deficient. The particulars were grouped by reference to the "Application Form" itself and the "Translocation Proposal" accompanying the form. No particulars were provided identifying insufficiency in information in other documents or evidence that Aussie Ark had filed in the proceedings, only in the application form and the accompanying proposal.
20. Together, these proposed amendments made clear that the second contention raised by the Department was directed to the insufficiency of information in the licence application and accompanying proposal to enable the Department to assess the application. The contention was not directed to the Court's consideration and determination of the licence application on appeal. The contention did not explain what was the legal consequence of the contention, if it were to be established, that the application and accompanying proposal contained insufficient information in order for the Department to assess the application.
21. Contention 3 in the draft Amended Statement of Facts and Contentions was a new contention: "The past, current and planned conservation work of the Respondent with respect to the Broad-toothed Rat is a relevant consideration when assessing the Application."
22. No particulars were provided in relation to this contention.
23. Contentions 4 to 10 remained the same as contentions 3 to 9 in the original Statement of Facts and Contentions.
24. The Department's notice of motion was heard by me on 4 September 2023. Aussie Ark opposed leave being granted to amend the Statement of Facts and Contentions in the form sought. Amongst other objections was the lack of or inadequacy of particulars of the contentions, including of the new contention 3. I agreed that leave to amend should not be granted for that draft, but adjourned the motion to 6 September 2023 to allow the Department to re-draft the contentions.
25. On 6 September 2023, the Department handed up a re-drafted Amended Statement of Fact and Contentions. Contention 1, that the application was substantially the same as the previous application, was appropriately not pressed.
26. The contentions that the licence application had not been duly made and hence there has been no deemed refusal of the application, pleaded in paragraphs 4 and 5 of the original Statement of Facts and Contentions, were grouped together as contention 1A and particulars were provided of the contention.
27. The contention that the licence application contained insufficient information to be assessed, pleaded in paragraph 2 of the original Statement of Facts and Contentions, was numbered as contention 2 and named "The Application (including the proposal) contains insufficient information". The contention was amended in some of the respects proposed in the first draft of the Amended Statement of Facts and Contentions. First, the contention itself specified that the person whose assessment of the application was disabled by the insufficiency of information in the application was the Department. Second, particulars were provided identifying the respects in which the translocation proposal accompanying the application form was said to be insufficient. The Department no longer sought to argue that the application form itself contained insufficient information.
28. The Department sought to raise, as contention 3, that the licence application is inconsistent with the Department's conservation work with respect to the Broad-toothed Rat. No particulars were provided. The Department contended that this is a relevant consideration when assessing the application under cl 2.26(h) of the BC Regulation, being "any other matter the Environment Agency Head considers relevant". The Department contended that there was insufficient information in the application on the impact that the proposed activities in the application will have on the in-situ population of the Broad-toothed Rat for the application to be assessed under cl 2.26(a) to (h) of the BC Regulation.
29. The contention that Aussie Ark had allegedly unlawfully collected individuals from the wild, pleaded in paragraphs 6 to 9 of the original Statement of Facts and Contentions, was numbered as contention 4 and named "The Applicant's conduct in complying with the BC Act is a relevant matter in considering the Application". This contention was twofold. First, that Aussie Ark had collected the species from the wild without a licence is a relevant matter to be taken into account in determining the suitability of Aussie Ark to be granted a licence, under cl 2.26(g) and (h) of the BC Regulation. No particulars were granted. Second, that Aussie Ark was subject to an ongoing investigation in relation to possible offences under the BC Act is a relevant consideration, under cl 2.26(g) and (h) of the BC Regulation. No particulars were provided.
30. I granted leave to the Department to amend its Statement of Facts and Contentions in the form provided on 6 September 2023, subject to the Department providing particulars of the new contention 3 and the new propositions raised in contention 4. The Department so amended and filed its Amended Statement of Facts and Contentions in each proceeding on 7 September 2023. In each proceeding, Aussie Ark filed and served its Amended Statement of Facts and Contentions in Reply on 18 September 2023.
31. On 20 September 2023, Aussie Ark filed and served an affidavit of Ms Hayley Shute responding to each of contentions 1A and 2 and especially the particulars to the contentions, that had been provided by the Department in its Amended Statement of Facts and Contentions dated 7 September 2023. As I have earlier noted, until the Department sought and obtained leave to amend its Statement of Facts and Contentions, the Department had not provided particulars of its contentions in the Statement of Facts and Contentions. Ms Shute's affidavit methodically responded to each particular to contention 2, demonstrating where information on the matter the subject of the particulars had already been provided in the detailed proposal that accompanied the application form and also provided further explanation on the matter.
32. On 29 September 2023, the Department filed and served affidavit evidence in reply of Mr Grenadier and Ms Izquierdo. Mr Grenadier's evidence dealt with some occasions where he had interacted with Aussie Ark, including at a workshop held in Barrington Top on 15 and 16 June 2021 and correspondence he sent on 15 and 20 September 2021. Mr Grenadier's evidence did not address the Department's contentions in any meaningful way. Ms Izquierdo's evidence did, however, address contentions 1A and 2, seeking to rebut Ms Shute's evidence. Ms lzquierdo asserted that Aussie Ark had still not provided sufficient information, notwithstanding what Ms Shute had provided and said in her affidavit. That assertion was framed in terms of "if this application was still being assessed by the Department", emphasising that contention 2 was still addressed to the assessment of the application by the Department and not by the Court.
33. On 12 and 13 October 2023, the joint expert reports concerning the Broad-toothed Rat and the Broad-headed Snake were filed. There were different experts for each species. For the Broad-toothed Rat, Aussie Ark engaged Associate Professor Matthew Crowther and the Department engaged Associate Professor Barbara Wilson. For the Broad-headed Snake, Aussie Ark engaged Dr Jonathon Webb and the Department engaged Dr David Newell. Regrettably, the joint expert reports did not address the contentions in the Amended Statement of Facts and Contentions, but instead, addressed other questions concerning the impact of collecting individuals of the species from the wild and establishing a captive breeding program. These were merit issues that were not raised by the Department in its Amended Statement of Facts and Contentions. The joint expert reports were, therefore, not relevant and hence, not helpful to the Court in determining the appeal on the principal contested issues in the proceedings, which were the contentions raised by the Department in the Amended Statement of Facts and Contentions.
34. On 16 October 2023, the Department filed and served what were described as "minimum conditions for a captive breeding program" in purported compliance with the Court's direction that the Department file and serve draft, without prejudice conditions of any licence for the Broad-toothed Rat and the Broad-headed Snake the Court might determine to grant. The documents filed by the Department did not meet this requirement. They were not tailored to the particular licence applications that were the subject of the appeal. They were generic pro forma conditions for all scientific licences under the BC Act. That is evident from: 1. the heading "minimum conditions for a captive breeding program"; 2. the statement of the "authority" granted by the licence: "Harm (capture and injure only), deal in (possess only) and liberate XXX [species name] for a captive breeding program"; 3. the non-identification of the species of animal the subject of the licence; 4. the non-identification of the total number of animals and the number of adult females and adult males to be collected under the licence; 5. the non-identification of the sites from which animals are authorised to be collected; 6. the non-identification of the location at which the animals are authorised to be possessed; 7. the non-identification of the name of the licensee; and 8. the non-inclusion of any condition particular to the licence applications the subject of the appeals.

The hearing and determination of the appeals

1. The proceedings came on for hearing before me on 24 October 2023, listed for four days. Mr Free of Senior Counsel and Ms Sims appeared for Aussie Ark and Mr Coffey appeared for the Department. Before Mr Free commenced his opening of both appeals, Mr Coffey indicated that he was instructed to convey an open offer to Aussie Ark that the Department was minded to grant a licence for the Broad-headed Snake. The Department was, however, drafting the conditions of the licence. The Department still required further information relating to risk assessment of the capture of individual snakes and Aussie Ark's intentions for dealing with the snakes. Conditions could be drafted requiring such information to be provided within a sufficient time. As I have earlier noted, the Department had failed to provide draft, without prejudice conditions for any licence that might be granted by the Court to the particular applications for the Broad-toothed Rat or Broad-headed Snake. As a consequence, the Department needed to draft the conditions from scratch.
2. Mr Coffey sought for the appeal in relation to the Broad-headed Snake to be adjourned to another date, to allow the Department to draft the conditions of the licence, to discuss those draft conditions with Aussie Ark and, once agreed with the Department, to grant the licence on conditions.
3. I did not allow that adjournment. I said that if a licence is to be granted, it will be granted by the Court exercising the functions of the Department on the appeal, and not by the Department. The Department had delayed determining the licence applications the subject of the appeal, as well as the previous applications, since 2021. I would not sanction further delay in the determination of the licence applications. The applications would need to be determined during the hearing of the proceedings.
4. To this end, I stood down the commencement of the hearing of the appeal in relation to the Broad-headed Snake to allow the parties to discuss and endeavour to agree upon the conditions of a licence for the Broad-headed Snake. I directed the parties to advise me through the course of the day how the discussions were progressing, so that if agreement were not to be forthcoming, the hearing could commence.
5. Mr Free then opened Aussie Ark's case on the appeal in relation to the Broad-toothed Rat. Mr Free comprehensively addressed each of the contentions raised by the Department in the Amended Statement of Facts and Contentions filed 7 September 2023, demonstrating that none of the contentions warranted the Court refusing the licence application.
6. During the course of Mr Free's opening, and no doubt after hearing Mr Free's explanation of the difficulties the Department faced in establishing the contentions, Mr Coffey stated that the Department no longer pressed contention 1A. This was the contention that the licence application had not been duly made and hence that there had been no deemed refusal of the application that could found an appeal by Aussie Ark to the Court. This meant that two of the Department's contentions raising a question of law that went to the jurisdiction of the Court to uphold the appeal, contentions 1 and 1A, had been abandoned by the Department at or before the hearing.
7. Just before lunch on the first day of the hearing, during Mr Free's opening on contention 2, Mr Coffey again rose to announce that the Department no longer pressed particulars (e) and (h) of contention 2, as the Department now accepted that the proposal accompanying the application provided sufficient information on those matters.
8. At the end of the day, after Mr Free concluded his opening on all of the Department's contentions, Mr Coffey commenced his opening of the Department's case. Part-way through his opening, at the end of the day, the hearing was adjourned to resume on 25 October 2023. Through the course of the day, the parties had advised the Court that productive discussions were taking place on the conditions of the licence for the Broad-headed Snake and sought for the hearing of that appeal to be further adjourned to the next day.
9. At the start of the second day of the hearing, 25 October 2023, before Mr Coffey resumed his opening of the Department's case, Mr Coffey announced that the Department was minded now to agree to the issue of a licence for the Broad-toothed Rat as well. He sought for the continuation of the hearing of the appeal concerning the licence application for the Broad-toothed Rat to be adjourned to 2:00pm, to enable the parties to discuss the conditions of the licence for the Broad-toothed Rat. Further time was also needed to settle the conditions of the licence for the Broad-headed Snake. Aussie Ark consented to these adjournments of the hearings. At 2:00pm, the hearing was further adjourned to 26 October 2023.
10. The settling of the conditions for both licences took longer than the parties anticipated. The hearing of both appeals was adjourned to 27 October 2023, the final day of the scheduled hearing.
11. In the meantime, I had been shown drafts of the licences. These draft licences were not in a satisfactory form. The first drafts were in the pro forma style of the Department's generic authority, which had been filed on 16 October 2023. I directed they be redrafted to be in an appropriate form of licence to be granted by the Court, which I explained.
12. Finally, at midday on 27 October 2023, I was provided with licences in a form that I considered appropriate to grant. I indicated to the parties that I considered it would be appropriate in the circumstances of the case for the Court to grant the licences, in the terms and on the conditions set out in the draft licences, for both the Broad-toothed Rat and the Broad-headed Snake. I asked whether any party required me to give reasons for my decisions in both appeals. Neither party required reasons. I therefore ordered that each appeal be upheld and a licence be granted to Aussie Ark in the terms and subject to the conditions set out in Annexure 1 to the order in each appeal.
13. It is important to recognise that these were adjudicative decisions of the Court. Although the parties had reached agreement that the Court should grant the licences, the Court was not obliged to make orders in terms of the parties' agreement. The Court was re-exercising the function of the Department on the appeal under ss 2.11, 2.13 and 2.14 of the BC Act to grant the licences. In doing so, the Court needed to consider the matters in Div 3 of Pt 2 of the BC Act and Div 2.3 of Pt 2 of the BC Regulation, as well as the principal contested issues joined between the parties. The latter issues were the contentions in the Amended Statement of Facts and Contentions that were still pressed by the Department.
14. Although I did not at the time give reasons for my decisions to uphold each appeal and to grant the licences, I considered that none of the contentions raised by the Department was a reason for not granting the licences. As my reasons for these adjudicative decisions are relevant to the costs applications, I will shortly state my reasons now.
15. The contentions raising questions of law as to the power of the Court to grant the licences, contentions 1 and 1A, had been withdrawn by the Department and no longer needed to be determined.
16. Contention 2, that the licence applications contained insufficient information in order to be assessed by the Department, was misguided. On the appeal, the Court re-exercises the function of the Department to consider and determine the licence applications. The Court's consideration and determination was made on the basis of all of the evidence before the Court. That evidence involves not only the licence applications and any accompanying documents, such as the application form and accompanying detailed proposal in this case, but also further evidence filed in the proceedings, such as the affidavit evidence of Ms Shute and documentary evidence filed by Aussie Ark.
17. Contention 2 is misguided in that it frames the insufficiency of information only with respect to the application itself and identifies the arbiter of the sufficiency of the information in the application as being the Department and not the Court. Establishment of the contention had no legal consequence for the Court's consideration and determination of the licence application on the appeal. Even if the Department considered that the application the subject of the appeal contained insufficient information in order to be assessed by the Department, the Court could consider that there was sufficient information, in all of the evidence before the Court, to assess the licence application and grant a licence.
18. This was in fact my determination. Through Mr Free's careful opening of Aussie Ark's case on the Broad-toothed Rat, I was taken to the evidence on each of the matters particularised in contention 2. I was satisfied that there was sufficient information on each of the matters to assess the application and grant a licence. As the contentions for the Broad-toothed Rat were essentially the same as the contentions for the Broad-headed Snake, I similarly determined that the information in the evidence on the Broad-headed Snake allowed the Court to assess the application and grant a licence for the Broad-headed Snake.
19. Contention 3 was also misguided. The contention was that "the Application in its current form" is inconsistent with the conservation work of the Department in relation to the Broad-toothed Rat and Broad-headed Snake. At the outset, a licence application cannot itself be inconsistent with the Department's conservation work; only the activity proposed in the application could be inconsistent. In any event, the inconsistency asserted by the Department boiled down to this: the activity proposed by Aussie Ark was to collect individuals of each species from the wild to establish a captive breeding program to conserve the species, but the Department's conservation work does not involve this activity. But this is not an inconsistency. Just because the Department is not undertaking a translocation and captive breeding program, does not prevent anyone else from seeking a licence to undertake such a program or give rise to any inconsistency with the Department's conservation work if such a program is undertaken in accordance with a licence.
20. Contention 4 lacked merit. The Department did not contend, in contention 4, that Aussie Ark was not a fit and proper person to hold a licence. Clause 2.27 of the BC Regulation provides that a person is not eligible to hold a licence unless the Department is satisfied that the person is a fit and proper person to hold the licence. The Department did not contend that it was satisfied that Aussie Ark was not a fit and proper person to hold a licence for either the Broad-toothed Rat or Broad-headed Snake.
21. Rather, the Department's contention was that Aussie Ark's collection of individuals of a species from the wild without a licence in the past, and the Department's ongoing investigation of that conduct, were relevant to the Court's determination of whether to grant the licences sought by Aussie Ark. This alleged unlawful collection of species from the wild was the reason why the Department suspended consideration of both the previous and the current licence applications until the Department completed its compliance investigation.
22. The Department had not completed its compliance investigation by the time of the hearing of the appeals and indeed still had not done so at the time of hearing of the costs application. The Department also did not adduce evidence proving that Aussie Ark had unlawfully collected individuals of a species from the wild or provide any information as to the status of the ongoing investigation. The Department's contention was based simply on its own bare assertion that such conduct had occurred in the past and on an inference it sought to draw from Aussie Ark's correspondence. That bare assertion and inference was insufficient to prove the asserted commission of an offence by Aussie Ark.
23. Not only did the Department fail to prove this contention, the contention went nowhere even if it had been proved. It is long established in planning and environmental law that prior unlawful conduct by a person does not prevent the grant of a statutory authority to the person to carry out that conduct in the future. In planning law, see Kouflidis v Salisbury City Corp (1982) 29 SASR 321 at 323-324 and Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [19]-[35].
24. For this reason, even if the Department had established that Aussie Ark had unlawfully collected individuals of a species from the wild (which it did not), this would not have been a bar to the Court granting a licence to Aussie Ark to collect and possess individuals of a species from the wild in the future.
25. For these reasons, I considered that none of the contentions raised by the Department in its Amended Statement of Facts and Contentions warranted the Court refusing to grant the licences sought by Aussie Ark. Having considered the terms and conditions of the licences agreed by the parties, I determined that licences should be granted on those terms and conditions.
26. This decision accorded with the Department's position at the end of the hearing when it agreed that the licences should be granted. The Department had abandoned the legal issues in contentions 1 and 1A, including that the licence applications were not duly made and the Court had no power to grant the licences. The Department accepted that the totality of the information provided by Aussie Ark in relation to the activity for which a licence was sought was sufficient to assess the licence application and to grant a licence for each species. This resolved contention 2. The Department accepted that the activity that would be authorised by the licences would not be inconsistent with its conservation work, resolving contention 3. The Department accepted that whatever might be the situation in relation to Aussie Ark's alleged non-compliance with the BC Act, it was not a reason for not granting the licences. This resolved contention 4.

The Department's conduct justifies a costs order

1. Aussie Ark contended that the circumstances in which the Court should consider the making of a costs order to be fair and reasonable fell within paragraphs (a), (c), (d) and (f) of r 3.7 of the Court Rules.
2. Under paragraph (a), Aussie Ark contended that the Department had raised two questions of law that, if determined in one way, were determinative of the proceedings and did not involve an evaluation of the merits of the application. Contention 1 was that the licence application the subject of each appeal was substantially the same as the previous licence application. As I have earlier noted, the Department did not explain in contention 1 what was the legal consequence of this contention. I presume the legal consequence was that it was an abuse of process to make an application in substantially the same terms, so that the Court would not entertain that application. In this way, the upholding of that contention would be determinative of the proceedings. It did not involve an evaluation of the merits of the application. The Department raised that contention 1 in paragraph 1 of the original Statement of Facts and Contentions filed on 20 February 2023 and maintained it up until it obtained leave to amend its contentions and accordingly filed its Amended Statement of Facts and Contentions on 7 September 2023. Aussie Ark needed to respond to that contention and prepare for a hearing on the contention up until 7 September 2023 when it was withdrawn.
3. Contention 1A was that the licence application had not been duly made and hence there could have been no deemed refusal of an application, which could found Aussie Ark's appeal to the Court. The Department raised this contention in paragraphs 4 and 5 of its original Statement of Facts and Contentions and maintained that contention in its Amended Statement of Facts and Contentions. The Department persisted with the contention right up to the hearing and only indicated that it would not press the contention during Aussie Ark's opening of its case responding to the contention. That contention was jurisdictional - it went to the Court's jurisdiction to hear and dispose of the appeal against the Department's deemed refusal of the application. If the contention was upheld, it was determinative of the proceedings. It did not involve an evaluation of the merits of the application.
4. Aussie Ark submitted that both of these contentions raising questions of law were without merit.
5. As to contention 1, Aussie Ark noted that the Department raised this contention in the original Statement of Facts and Contentions filed on 20 February 2023 but abandoned it in the Amended Statement of Facts and Contentions filed on 7 September 2023. The legal significance of the contention was never explained. Aussie Ark submitted "it was a contention that went nowhere, and served only to distract from the real issues". Nevertheless, Aussie Ark was required, until it was abandoned, to meet the contention and incurred costs in doing so.
6. As to contention 1A, Aussie Ark submitted that it too was without merit. Section 2.12(1) of the BC Act merely requires an application for a licence to be made to the Department "in the form approved" and "containing the information required" by the Department, and to be accompanied by the standard application fee prescribed by the BC Regulation. Section 2.12(2) of the BC Act allows the Department to require the applicant to pay an additional amount to the standard application fee in certain circumstances.
7. Clause 2.29 of the BC Regulation specifies the time for the Department to determine an application for a licence. Clause 2.29(1) specifies that time to be within 28 days after the date on which the application "has been duly made" or, if the Department determines that additional time is required, within 56 days after that date. Clause 2.29(3) specifies the date on which the application is deemed to be refused: "(3) An application for a biodiversity conservation licence that has not been determined is taken to have been refused - (a) after the expiration of the period within which the Environment Agency Head is required by this clause to determine the application, or (b) after the expiration of the period of 90 days after the application was made, whichever is the latter."
8. That date activates the right of appeal in cl 2.30 of the BC Regulation. Clause 2.30(2) provides that: "(2) If an application for a licence is taken to have been refused under clause 2.29, the appeal is to be made within 28 days after the date the application is taken to have been so refused."
9. Clause 2.29(5) clarifies that an application is not "duly made" for the purposes of cl 2.29 "unless the applicant has complied with the requirements of section 2.12(1) and (2) of the Act in relation to the application".
10. The consequence of these statutory provisions, Aussie Ark submitted, is that an application for a licence is only not "duly made" if the applicant has not complied with the requirements of s 2.12(1) and (2) of the BC Act. The requirements of s 2.12(1)(b) and (2) concern the payment of fees for the application. The Department did not contend that Aussie Ark had not complied with these requirements. The requirement of s 2.12(1)(a) is that the application be "in the form approved" and contain "the information required" by the Department.
11. Aussie Ark noted that the Department had adduced no evidence establishing that it had approved a form of application or required an application to contain any information. Aussie Ark had issued a notice to produce which called for production of any decisions by the Department approving the form of application for a licence or requiring the application to contain any information. The Department's response served to confirm that no such decisions had been made.
12. Accordingly, there was no requirement of s 2.12(1)(a) with which Aussie Ark needed to comply in order for its application for a licence to be duly made. Clause 2.29(5) of the BC Regulation did not therefore operate to cause Aussie Ark's application not to be duly made or the deemed refusal of the application not to occur after the expiration of the period in cl 2.29(3).
13. In these circumstances, Aussie Ark submitted the Department should not have made or maintained the contention that the applications had not been duly made. Aussie Ark submitted, therefore, that the circumstance in paragraph (a) of r 3.7(3) was satisfied, justifying a costs order in Aussie Ark's favour.
14. The Department's response to this argument on paragraph (a) was brief. As to contention 1, the Department submitted that it was abandoned prior to the hearing and was not subject to argument. To award costs in relation to this contention would necessitate a hypothetical trial, contrary to Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 626. As to contention 1A, the Department submitted that it did not result in additional evidence or written submissions and noted that it was abandoned on the first day of the hearing.
15. I consider that the Department's raising and maintaining up to or shortly before the hearing, contentions 1 and 1A is a circumstance in which the making of a costs order in relation to the costs of the proceedings associated with these contentions is fair and reasonable. As Aussie Ark has explained, these contentions did raise questions of law that, if upheld, were determinative of the proceedings and did not involve an evaluation of the merits of the application. Aussie Ark had to incur costs in responding to these contentions. Those costs were incurred up to and including 7 September 2023 for contention 1 and 24 October 2023 for contention 1A.
16. The contentions were without merit. As to contention 1, there was no statutory bar to Aussie Ark making a fresh licence application in substantially the same terms as a previous licence application. As a matter of fact, Aussie Ark did this only to overcome the Department's refusal to consider and determine its previous application. As the time to appeal against the deemed refusal of the previous application had expired, Aussie Ark was forced to withdraw its previous application and re-submit an application in substantially the same terms to re-start the deemed refusal period. There was no provision in the BC Act or the BC Regulation which precluded Aussie Ark from doing so. When the deemed refusal period for the re-submitted application expired, Aussie Ark appealed against the Department's deemed refusal of the re-submitted application as it was entitled to do. There could be no abuse of process in Aussie Ark appealing only once to the Court against the deemed refusal of that application.
17. To so conclude does not require a hypothetical trial to predict the outcome of a hypothetical case. This was a question of law that was amenable to ready determination on facts not in contest.
18. As to contention 1A, as Aussie Ark submitted and I have explained above, the contention was not maintainable. The licence application could only not have been duly made if the Department had approved a form of application for the purposes of s 2.12(1)(a) of the BC Act, and decided the information the application was required to contain. The Department did not prove that it had done either. Accordingly, there were no requirements of s 2.12(1)(a) with which Aussie Ark needed to comply. The Department's contention that Aussie Ark's application had not been duly made and hence, that there could be no deemed refusal of the application against which Aussie Ark could appeal to the Court, would have failed. Again, this conclusion does not involve predicting the outcome of a hypothetical trial on contested facts. It is a conclusion on a question of law on uncontested facts.
19. In these circumstances, it is fair and reasonable to make an order for costs to compensate Aussie Ark for the expenses it incurred in meeting these contentions on questions of law that had no reasonable prospects of success.
20. Under paragraph (c) of r 3.7(3) of the Court Rules, Aussie Ark submitted that the Department's conduct in refusing to consider and determine both the previous licence applications and the re-submitted licence applications until the Department completed its compliance investigation into whether Aussie Ark had unlawfully collected individuals of a species from the wild, was unreasonable. The Department's refusal to consider and determine the previous applications necessitated Aussie Ark re-submitting the applications to re-start the deemed refusal period. The Department's continued refusal to consider and determine the re-submitted applications necessitated Aussie Ark appealing against the deemed refusal of the re-submitted applications.
21. Aussie Ark submitted that the Department's refusal to consider and determine both applications was without a proper basis in law. The Department had a statutory duty under the BC Act to consider and determine the applications. Nothing in the BC Act or the BC Regulation authorised the Department to refuse to consider and determine an application for a licence if the applicant is under investigation for suspected non-compliance with the BC Act.
22. Aussie Ark submitted that had the Department properly administered the statutory process of considering and determining the applications it is likely that no appeal would have been necessary. Even if an appeal would still have been required, the proper administration of the process of considering and determining the applications would at least have exposed and confined the merit issues. Instead, the Department's refusal to consider and determine the applications left Aussie Ark with no option but to bring the proceedings, with all of the associated costs and delay, to achieve the result which should have been available much earlier, and with much less expense, through the proper administration of the BC Act: see Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [52].
23. The Department disputed that its conduct was the cause of Aussie Ark having to appeal to the Court. The Department accepted at the hearing of both the appeal and the application for costs that there was no statutory basis authorising the Department to refuse to consider and determine an application for a licence if there is an investigation into suspected non-compliance with the BC Act. Nevertheless, the Department submitted that the operative cause of the delay in the Department's consideration and determination of the applications was Aussie Ark's conduct in failing to provide all of the information requested by the Department and in allegedly breaching the BC Act by unlawfully collecting species from the wild.
24. I find that the Department did act unreasonably in the circumstances leading up to the commencement of the proceedings by refusing to consider and determine Aussie Ark's applications for licences. As I have explained earlier, the conduct in refusing to consider and determine Aussie Ark's applications for licences until the Department's compliance investigation was completed lacked statutory authority. The Department failed to perform its statutory duty to consider and determine the applications. That failure to perform its statutory duty was the operative cause of Aussie Ark having to re-submit its applications for licences and having to appeal against the deemed refusal of the re-submitted applications.
25. Aussie Ark's alleged non-compliance with the BC Act was not a cause at all. Irrespective of whether Aussie Ark had or had not complied with the BC Act or whether the Department had or had not undertaken a compliance investigation, the Department was not authorised under the BC Act or BC Regulation to refuse to consider and determine Aussie Ark's applications for licences. Equally, the alleged failure of Aussie Ark to provide all of the information the Department requested was not an operative cause. The Department's refusal to consider and determine the application was expressly stated by the Department to be because of the ongoing compliance investigation, not any failure of Aussie Ark to provide requested information. The Department's letter of 22 March 2022 and email of 17 October 2022 made this clear.
26. Under paragraphs (d) and (f) of r 3.7(3) of the Court Rules, Aussie Ark submitted that the Department raised and maintained contentions which did not have reasonable prospects of success or where to raise or maintain those contentions was otherwise unreasonable. Aussie Ark earlier submitted that contentions 1 and 1A, which raised questions of law, were without merit. Aussie Ark submitted that contention 2, as framed, raised a non-issue. Contention 2 was that the licence applications, as well as the previous licence applications, "contained insufficient information in order to be assessed by the Respondent". Aussie Ark submitted that this is not a relevant point of inquiry for the Court on a merits appeal. The Court is not concerned with whether the Department as the original decision-maker did or did not have sufficient information to determine the application. The only question is whether on the information available to the Court at the hearing of the appeal against the Department's decision, the merits of the application favoured the grant of the licence.
27. Aussie Ark submitted that contention 3, that granting a licence to undertake the activity sought in the application would be inconsistent with the Department's conservation work, raised a non-issue. There was no inherent inconsistency in Aussie Ark undertaking an activity to conserve a species, which the Department is not undertaking. Something more needed to be established by the Department for there to be inconsistency.
28. Aussie Ark submitted that contention 4 of the Amended Statement of Facts and Contentions, and paragraphs 6 to 9 of the original Statement of Facts and Contentions, raised a non-issue. The alleged unlawful collection of individuals of a species from the wild in the past, even if proven, is not a bar to the Court granting a licence to collect individuals of a species from the wild in the future. The Department never articulated what was the legal significance of the allegation. Importantly, the Department at no point contended that Aussie Ark was not an eligible person to hold a licence under cl 2.27 of the BC Regulation.
29. Aussie Ark submitted that the Department acted unreasonably in the conduct of the proceedings by raising and maintaining these contentions, which had no reasonable prospects of success. That the contentions were not maintainable is evidenced by the Department's capitulation. The Department abandoned at or shortly before the hearing contentions 1 and 1A. When forced to a hearing on contentions 2, 3 and 4, the Department was not prepared to put forward a case to substantiate its opposition to the grant of the licence on the basis of those contentions. The Department capitulated and agreed to the Court granting the licences despite the contentions. Aussie Ark submitted that, in these circumstances, the Court is entitled to infer that there was never a sound reason on the merits for the licences not to be granted.
30. The Department submitted that, notwithstanding the Department raising five contentions and maintaining four contentions, the "real issue in the appeals was the legitimate complaint by the Respondent about the inadequacy of information". That was raised in contention 2. The Department noted that it had repeatedly requested Aussie Ark to provide further information, but Aussie Ark had declined to do so. The Department submitted that this issue was resolved only by Aussie Ark providing "extensive information", by way of Ms Shute's affidavit filed on 20 September 2023, a matter of weeks before the hearing. Only on the provision of this information was the Department able to assess the application and formulate conditions of the licence so as to be satisfied that the licences could be granted.
31. In these circumstances, the Department submitted that it did not act unreasonably in the conduct of the proceedings. It raised a "real issue" about the insufficiency of the information, which was resolved only weeks before the hearing. The Department submitted that the Court should be slow to compensate Aussie Ark in circumstances where it had adopted the approach of not providing the requested information until a few weeks before the hearing.
32. The Department rejected Aussie Ark's complaint that its contentions did not have reasonable prospects of success as being "both wrong and contrary to the expert evidence tendered by the parties". The Department submitted that its contention that there was insufficient information to grant the licences was supported by the two sets of experts in their joint expert reports. The experts identified respects in which further information was required. The Department submitted that in light of the experts' evidence, it was not unreasonable for the Department to delay agreeing to the grant of the licences until the hearing.
33. I find that the circumstances in r 3.7(d) and (f) of the Court Rules are established in this case. The Department raised and maintained until the hearing contentions that had no reasonable prospects of success. I have earlier given my reasons why I considered that none of the contentions raised in the original Statement of Facts and Contentions or the Amended Statement of Facts and Contentions were maintainable or established. The Department's defence of its position on the application for costs failed to grapple with the terms in which those contentions were framed. As I have explained when recounting the circumstances leading up to the commencement of the proceedings, and the circumstances of the pleading and re-pleading of the Department's contentions, the terms in which the contentions were drafted were considered and deliberate.
34. The original drafting of the contentions in the Statement of Facts and Contentions filed on 20 February 2023 was properly challenged by Aussie Ark. The Department's lawyer peremptorily rejected the reasonable request of Aussie Ark's solicitor for the Department to re-plead its case and provide particulars. The Department's lawyer maintained that the Department's case was as pleaded in the contentions.
35. The Department would not have re-pleaded its case but for Aussie Ark's solicitor challenging the evidence filed by the Department a couple of months before the hearing. The solicitor identified that the Department's evidence raised 18 additional issues not pleaded as contentions in the Department's Statement of Facts and Contentions. Again, the Department's lawyer responded combatively, but nevertheless re-drafted the contentions to include these additional issues and sought Aussie Ark's consent to the amended statement of facts and contentions. In the end, the Department needed to apply to the Court for leave to amend its Statement of Facts and Contentions. Leave was granted to the third version of the Amended Statement of Facts and Contentions. The contentions in the Amended Statement of Facts and Contentions were drafted by the Department's lawyers to plead carefully and clearly the case the Department wished to run.
36. As I have found, that case, as pleaded in the contentions, was unmeritorious and not established. This is the foundation for the Department's conduct of the proceedings being unreasonable. That unreasonable conduct caused Aussie Ark to incur costs they ought not to have had to incur if the Department had not raised those contentions.
37. I reject the Department's submission that the only real issue in the proceedings was the insufficiency of information. The Department raised other contentions, both in the original and the amended Statement of Facts and Contentions. There was no disclaimer that these contentions were not "real" issues and did not need to be addressed by Aussie Ark in preparing its case or by the Court in determining the appeals. Aussie Ark and the Court needed to address each contention raised and maintained by the Department.
38. I reject the Department's invocation of support for the reasonableness of contention 2 in the joint expert reports identifying respects in which further information should be provided. As I have earlier found, the joint expert reports did not address the contentions raised by the Department in the original or amended Statement of Facts and Contentions. Instead, the experts addressed different questions. In so far as the experts identified respects in which further information should be provided, those respects were not pleaded as particulars of contention 2 and the Department did not seek leave to amend the particulars of contention 2 to add, or to raise as a new contention, those respects as a ground of insufficiency of information.
39. I reject the Department's submission that the cause of the Department's capitulation was the late provision of information requested by the Department by service of Ms Shute's affidavit only weeks before the hearing. That is contrary to the facts. First, contention 2, as framed, pleaded that the application and documents accompanying the application contained insufficient information in order for the Department to assess the application. It did not plead that there was insufficient information before the Court for the Court to determine the application. That pleaded insufficiency could not be cured by the later provision of information to the Court. Second, the provision of the further information in Ms Shute's affidavit was rejected by the Department as being insufficient. Ms Izquierdo expressly responded to Ms Shute's affidavit, stating that the further information was still insufficient to enable the Department to assess the application. Third, the Department did not state at any time up until the first day of the hearing of the appeal concerning the Broad-headed Snake and the second day of the hearing of the appeal concerning the Broad-toothed Rat that the provision of further information in Ms Shute's affidavit resolved contention 2. The Department maintained the contention up to the hearing. Aussie Ark was obliged to continue to meet that contention.
40. For these reasons, I find there are circumstances falling within paragraphs (a), (c), (d) and (f) of r 3.7 of the Court Rules that make a costs order to be fair and reasonable.

No disentitling conduct of Aussie Ark

1. The Department submitted that, even if the Court were to find that there were circumstances that would make an order for costs in Aussie Ark's favour fair and reasonable, the conduct of Aussie Ark "which both created the need for and prolonged the proceedings" should disentitle it such an order: at [21] of the Department's written submissions on the costs application. The Department identified what it said was the misconduct of Aussie Ark in the circumstances leading up to the litigation and relating to the conduct of the litigation: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69].
2. The first was that, even before Aussie Ark submitted its original application for licences on 18 July 2021 for the Broad-toothed Rat and on 13 January 2022 for the Broad-headed Snake, the Department nominated a "relationship manager" to assist Aussie Ark in applying for licences. The Department asserted in its written submissions on the costs application that "this role was established for the simple reason that the Applicant was difficult to deal with": at [22].
3. I reject this submission. That assertation was made without reference to any evidence proving the assertion. Two earlier footnotes in the written submissions referred to paragraphs 9 and 12 of the affidavit of Ms Jade Matthews, one of the Department's lawyers with the day-to-day carriage of the proceedings. However, those paragraphs, to the extent they were read on the costs application, only stated the facts concerning the establishment of a relationship manager as a conduit for communications between Aussie Ark and the Department, and did not prove that Aussie Ark was difficult to deal with.
4. In any event, as Aussie Ark submitted, that assertion, even if proved, is not relevant misconduct which would disentitle Aussie Ark to a costs order in its favour. "Misconduct" in the context of a costs application must relate to the litigation itself. That is clear from the examples given by McHugh J in Oshlack v Richmond River Council at [69]: "Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute."
5. The Department's appointment of a relationship manager because of a perception that Aussie Ark was difficult to deal with is unrelated to the litigation before the Court, and hence cannot be misconduct of Aussie Ark that would disentitle it from a costs order in the litigation.
6. The second alleged disentitling conduct of Aussie Ark concerned its delay in providing information in support of its applications for licences, notwithstanding repeated requests by the Department for information. The Department submitted that Aussie Ark's delay in providing the requested information both created the need for and prolonged the proceedings (at [21] of the Department's written submissions on the costs application).
7. I reject this submission. I have earlier noted the Department's submissions that the only real issue in the proceedings was the insufficiency of the information provided by Aussie Ark and that this issue was only resolved by Aussie Ark providing the requested information Ms Shute's affidavit a few weeks before the hearing. I reject those submissions for the reasons I have earlier given. The Department's refusal to consider and determine Aussie Ark's application for licences was not due to Aussie Ark's failure to provide sufficient information but instead due to the Department's failure to perform its statutory duty to determine the applications in the misguided belief that it could do so whilst it was conducting a compliance investigation into the Aussie Ark's past conduct. In this circumstance, any delay by Aussie Ark in providing the information requested by the Department was not causative of the litigation and hence not misconduct.
8. The third alleged disentitling conduct was said to be the "tenor" of the correspondence of Aussie Ark responding to the Department's requests for information. In [26] and [27] of the Department's written submissions, the Department gives examples of what it said was the "tenor" of Aussie Ark's responses.
9. I reject this submission. On my reading, Aussie Ark's statements in its correspondence reveal nothing more than frustration with the bureaucratic and delayed process it had had to endure by the Department's handling of its applications for licences.
10. In any event, as Aussie Ark submitted, nothing is to be gained from evaluating the "tenor" of the correspondence passing between the parties regarding the Department's requests for information. As I have just held in relation to the second alleged disentitling conduct, any failure of Aussie Ark to provide all of the information requested by the Department was not causative of the litigation and not disentitling conduct.
11. The fourth alleged disentitling conduct concerns the Department's allegation that Aussie Ark unlawfully collected individuals of a species from the wild. The Department stated, in [35] of its written submissions on the costs application, that "collecting the animals without a licence, in circumstances where the Applicant had received warnings and advice of a regulatory investigation is serious and disentitling conduct". That allegation founded the contention in paragraphs 6 to 9 of the original Statement of Facts and Contentions and contention 4 in the Amended Statement of Facts and Contentions. The Department submitted that, in so far as the regulatory investigation into Aussie Ark's alleged prior unlawful conduct in collecting animals from the wild might have caused delay in the determination of the applications and forced the appeal, that outcome was of Aussie Ark's own making. The Department submitted that Aussie Ark's choices contributed significantly to the difficulties it encountered ([43] of its written submissions on the costs application).
12. I reject this submission. As I have earlier held, that contention, as framed in both Statements of Facts and Contentions, was unmeritorious and not established. Any alleged prior unlawful conduct did not operate as a bar to the Court granting a licence to collect animals from the wild in the future. In this circumstance, the alleged unlawful conduct of Aussie Ark in collecting animals from the wild cannot disentitle Aussie Ark from a costs order in its favour. I note that at the hearing of the costs application, the Department withdrew its submission that that alleged prior unlawful conduct was disentitling conduct.
13. There is, therefore, no conduct of Aussie Ark relating to the litigation or the circumstances leading up to the litigation, which disentitles Aussie Ark to the beneficial exercise of the discretion to make an order for costs of the litigation.

Conclusion and orders

1. I consider that the making of an order as to the whole of the costs of both proceedings is fair and reasonable in the circumstances. An order for costs will serve to compensate Aussie Ark for the costs it has had to incur because of the conduct of the Department in the circumstances leading up to the commencement of the proceedings and in the conduct of the proceedings, which I have found to be unreasonable. As Aussie Ark has been successful in its application for costs, it is also fair and reasonable to make an order for costs of the application for costs.
2. The Court orders, in each proceeding: 1. The respondent is to pay the applicant's costs of the proceedings, including of the application for costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2023