Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts

INTRODUCTION 1 In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (the appeal decision), the Court dismissed the appeal but made provision for the filing of written submissions as to costs. The appellant had foreshadowed seeking an order that it be not required to pay the costs of the respondents in relation to the appeal on the basis that the appeal was 'public interest litigation'. 2 In its submissions the appellant seeks orders that it should be not required to pay the costs of the appeal or the costs at first instance on the basis that the proceedings as a whole were brought purely in the public interest and were public interest litigation. We do not consider that it is appropriate that we deal with the costs at first instance. Different considerations may (but need not necessarily) apply in relation to proceedings at first instance as opposed to those on appeal (see Save the Ridge Inc v Commonwealth [2005] FCA 355 per Gyles J (at [3])). Dealing with security for costs, his Honour said: It seems to me that whatever arguments there may be concerning public interest litigation at first instance it will be rare that an unsuccessful applicant would be entitled to, in effect, a free appeal. There are in my view good reasons why at this point in litigation the public interest nature of the matter being pursued cannot outweigh the legitimate interests of the respondents so far as costs are concerned. I am therefore satisfied that an order for security ought be made. 3 In our view it is appropriate that the question of costs of the first instance hearing be determined by the primary judge.

THE BASIS OF THE SUBMISSION 4 The appellant existed as an unincorporated group from about June 2008 and was incorporated on 16 July 2010 under the Associations Incorporation Act 1984 (NSW). Its objects are to advocate for the protection, conservation and welfare of grey-headed flying foxes (GHFF). It has carried out its activities in New South Wales, Queensland and Victoria. The appellant had no financial or personal interest in the outcome of the proceedings. 5 The appellant argues that the issue surrounding the proposed dispersal of the GHFF from the Royal Botanic Gardens in Sydney (the Gardens) was a matter of broad public concern, as was indicated by the 282 submissions received during the public consultation process. 6 It accepts, however, that the mere categorisation of litigation as having been brought in the public interest is, on its own, not sufficient to justify departure from the usual order that costs should follow the event. There must be special circumstances to justify the Court's exercise of a discretion not to make the usual costs order in favour of the successful parties. 7 The appellant contends special circumstances apply, 'including' that the case tested whether a draft recovery plan (and the term 'critical habitat', as defined by it), is a mandatory consideration under s 136(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) as a 'matter relevant to any matter protected' under s 136(1)(a) in circumstances where the 'matter protected' is a threatened species protected by the EPBC Act. 8 As an alternative to there being no order as to costs, the appellant submits the Court should exercise its discretion to award the respondents only a limited portion of their costs. The appellant relies on Lansen v Minister for Environment and Heritage (No 3) (2008) 162 LGERA 258 where Mansfield J exercised a discretion to award the respondent only 25% of the costs so as to relieve the applicants of 75% of their costs burden. At [34], Mansfield J approached the issue in this way: 34 In my judgment, the principal issues raised by the Lansen applicants as identified above were of such significance, together with the other factors I have discussed, as to result in the costs discretion being exercised largely in favour of the Lansen applicants' contention. Put another way, I consider the scales have shifted from a starting point in favour of a costs order to the Minister and MRM to a point where there should be no or a relatively small order as to costs of the proceeding. I have therefore rejected the Minister's submission that the issues which I have specifically identified raised "no novel or difficult question of general importance". Each of these issues was complex. The issue as to the intersection of the operation of Pt 8 and the Bilateral Agreement (enlivened by s 83) is unlikely to re-occur, but the other issues as to the requirements for a valid assessment report for the purposes of the EPBC Act, as to the proper means of responding to a request for information under s 132, and as to the consequences of failing to have regard to a relevant consideration have the wider character of exposing the proper construction and application of the Act in the future, in the interests of the public. 9 In the present case the appellant contends that the argument it advanced as to the mandatory requirements under s 136(1) of the EPBC Act are on a similar footing to the arguments advanced in Lansen.

RELEVANT PRINCIPLES 10 In Oshlack v Richmond River Council (1998) 193 CLR 72 the appellant had sought a declaration that a development consent order the council had granted was void and of no effect. Notwithstanding his failure to obtain such an order, the appellant was not ordered to pay the costs of the respondent. The New South Wales Court of Appeal reversed that order but the High Court, by majority, in turn allowed the appeal from the decision of the Court of Appeal. In the joint judgment of Gaudron and Gummow JJ (at [49]), their Honours said: [49] The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ: "Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area." Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that "something more" than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case. (footnotes omitted) Earlier in the judgment (at [20]) there was reference to the factors mentioned by their Honours. Those factors were: … (iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna". (iv) In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation. (v) The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public. (footnotes omitted) 11 Subsequently, in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, Black CJ and French J observed (at [29]): This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may [sic] of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J. 12 As noted in Horn v Australian Electoral Commission [2008] FCA 43 (at [20]), the opportunities to challenge the decisions of a Minister or Commonwealth agency does not mean that a Minister or such agency should be deprived of an order in respect of their costs (see Save The Ridge Inc v Commonwealth (2006) 230 ALR 411 (at [17]-[18]) and Williams v Minister for Environment & Heritage (2004) 132 LGERA 368 per Gray J with Tamberlin J in agreement (at [40])). 13 Espousing the public interest alone is not a grant of general immunity from costs (Oshlack per Kirby J (at 123)). There is no general principle from Oshlack that usual costs orders should not apply if the subject matter of the litigation is a matter of public interest (Ruddock (No 2) (at [21])). The appellant appears to accept and we give importance to the observation by Burchett J in Australian Conservation Foundation v Forestry Commission (Tas) (1988) 81 ALR 166 (at [171]) where his Honour observed that just because a body is set up to pursue causes which its founders consider to be in the public interest (and which indeed may be in the public interest), it does not follow that those against whom it proceeds in court should be deprived of the ordinary protection of a right to a costs order in their favour in the event that the claim prove unfounded.

Public interest 14 Although the appellant is a non-profit organisation with no financial or personal interest in the outcome of the proceeding, that does not mean that it was a proceeding which could clearly be characterised as being in the public interest. There is little cogent evidence on the point. There is no reason to think there were not as many people in favour of removal of the GHFF from the Gardens as opposed to the removal of them. The number of people (282) who made submissions during the public consultation process compared with the population of Sydney does not seem particularly significant. The silent majority may be indifferent or could be quite content to see the GHFF dispersed. 15 The fact that the appellant may be the only organisation incorporated with a view to advancing the welfare of the GHFF, does not, without other considerations, take it outside the scope of the ordinary rule as to costs. It is true that the non-profit status of the organisation and the fact that it had no financial interest in the litigation are relevant considerations but they do not in themselves constitute sufficient reason for departing from the usual order. 16 As noted by Gaudron and Gummow JJ in Oshlack (at [30]): 30 In its submissions to this Court, the Council stressed, as generally applicable, principles or rules upon which the Court of Appeal had relied in deciding that Stein J had taken irrelevant matters into account. On the other hand, the submissions for the appellant, in part, sought to establish a category of "public interest litigation" into which this case fell. That is a "nebulous concept" unless given, as the primary judge did in the present case, further content of a legally normative nature. It also tends, in this litigation, to distract attention from the legal issue which is at stake. 17 In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 165 FCR 211 Heerey J (at [73]) also noted the observations of Griffiths LJ in Lion Laboratories Ltd v Evans [1985] QB 526 (a confidential information case) (at 553) that there is 'a world of difference between what is in the public interest and what is of interest to the public'. In this case, some members of the public demonstrated some interest in the issue of the removal of the GHFF from the Gardens. 18 But that does not necessarily mean in the absence of any special circumstances that pursuit of the litigation elevated it to that class of public interest litigation within the meaning of that expression as used in Oshlack so as to warrant a special costs order.

Novel question of general importance? 19 The appellant was wholly unsuccessful in the proceedings before the primary judge. It elected to bring an appeal challenging what it accepted were 'essentially factual' issues relating to whether the Minister had in fact failed to take into account certain mandatory considerations. 20 The appellant's complaint was that the Minister failed to participate in any 'act of intellectual engagement' with a loss of critical habitat or the draft recovery plan. Its complaint was that there was a failure to 'give weight to those matters as fundamental elements in making a determination' (see [48] of the appeal decision and [43]-[128] of the first instance judgment). The principal complaint of the appellant was whether the Minister failed to take into account the impact that removal of a colony of GHFF from the Gardens would have on the species (see [51] of the appeal decision). 21 These were simply matters of fact which have no precedent value to future decisions about the EPBC Act or about the GHFF. 22 There was no substantial new point of principle in the determination of the appeal. It turned largely on the application of well-known judicial review principles to the extensive reasons issued by the Minister under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the documentary material before the Minister in reaching his decision. There was nothing in the decision which had the capacity to establish far reaching points of principle contended for by the appellant in its submissions. In this regard, the challenge may be contrasted with the many authorities on which the appellant relies.

The strength of the appeal 23 Finally, a factor to be given some weight, in our view, is that while the appeal was arguable (and well argued), it could not be thought to have strong prospects of success. There was a carefully reasoned judgment at first instance. The appeal, while listed and heard urgently, was dismissed instanter. It would be a significant burden on scarce public resources if every 'public interest' body were open to run unconvincing appeals free of any costs risk. As a matter of public policy, that course is to be discouraged.

CONCLUSION 24 For these reasons, the appellant has not made out a basis for a special costs order of any description. The appellant is to pay the costs of the respondents to be taxed if not agreed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, McKerracher and Foster.