Procedure - Civil Proceedings in State and Territory Courts - Costs - Parties and Non-parties - Intervener, relator, amicus curiae - No costs award in favour of intervening Attorney-General against unsuccessful party.

Crown Proceedings Act 1993, s 16; Judicial Review Act 2000, s 39.

O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 1079; 55 FCR 591 applied.

Judgment Number: [2023] TASSC 14

BLUE DERBY WILD INC v FOREST PRACTICES AUTHORITY and SUSTAINABLE TIMBER TASMANIA and ATTORNEY-GENERAL

1. On 9 December 2022 I made orders dismissing the applicant's originating application filed 4 May 2022. This further ruling concerns the costs of the application and damages payable upon discharge of an interlocutory injunction.
2. The originating application challenged the certification of forest practices plans for harvesting timber from two coupes of land near Derby. The plans were certified by delegates of the Forest Practices Authority. The applicant sought orders under the Judicial Review Act 2000, or alternatively in the nature of certiorari, quashing or setting aside the delegations and each decision to certify the forest practices plans made pursuant to those delegations. The applicant unsuccessfully argued that the persons who certified the plans were not validly delegated the power to do so, and that the decisions to certify were invalidated by apprehended bias. The harvesting was being undertaken by the second respondent, Sustainable Timber Tasmania (STT). Work was already well underway when, on 11 April 2022, an order was made restraining STT from undertaking or authorising any further timber harvesting on the subject land until determination of the application. The Authority submitted the jurisdiction of the Court and did not participate in the proceeding. However the Attorney-General of Tasmania intervened. The applicant appealed the orders made on 9 December 2022 to the Full Court. The appeal has been heard but is not yet determined.
3. When orders were made dismissing the originating application and discharging the interlocutory injunction, STT and the Attorney applied for orders that the applicant pay their respective costs. Before the interlocutory injunction was ordered the applicant gave "the usual undertaking as to damages". In accordance with the terms of the Supreme Court Rules 2000, r 445(1), the effect of that undertaking was that once it was determined that the injunction should not have been granted, the applicant would pay to STT any damages that it may have sustained because of the injunction and that the Court or a judge thinks ought to be paid by the applicant. STT now applies, pursuant to r 445(2) and (3), for an order for payment of damages to be assessed.
4. The applicant's attitude to these applications is as follows. It does not oppose orders that it pay STT's costs and for payment of damages to be assessed, but asks that the orders be stayed until determination of the appeal. It opposes the Attorney's application for costs.
5. The orders for costs and assessment of damages sought by STT should be made. STT was successful in the proceeding. The injunctive and declaratory orders sought against it were successfully resisted. The applicant does not oppose the orders. The only issue is whether the orders should be stayed pending determination of the appeal. In my view they should not. Any question of a stay is more properly, in my respectful view, a matter for the Full Court. That Court is in a better position to determine, if it becomes necessary to determine, all of the issues relevant to whether a stay should be granted including issues of delay, potential prejudice and the merits of the appeal.
6. The application for costs made by the Attorney is opposed on the basis that she was "not forced by any coercive process" to participate, but chose to exercise her statutory power do so. In that case, the applicant contends, the notion of an "indemnity" is not engaged, and there is no usual practice of awarding costs when a public official chooses to participate in a case.
7. I have concluded that a costs order in favour of the Attorney should not be made, but not for the reasons advanced by the applicant. Before this ruling the parties were notified that the Court would be assisted by submissions on the effect of the Crown Proceedings Act 1993. Submissions were made on behalf of the Attorney-General addressing the issue.
8. The Attorney's power to intervene in proceedings is derived from statute. There is no need in this case to determine whether there is an inherent power to allow intervention although the contrary was suggested by Hutley JA in Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391 at 399-404. In this case there are two statutory sources of the power, the Crown Proceedings Act 1993 and the Judicial Review Act 2000. The Crown Proceedings Act 1993, s 16(1), provides:

"16(1) The Attorney-General may, on behalf of the Crown, intervene in proceedings -

(a) in which the interpretation or validity of any law of the State or the Commonwealth is in question; or

(b) in which -

(i) any legislative or executive power of the State or the Commonwealth, or of an instrumentality or agency of the State or the Commonwealth, is in question; or

(ii) any judicial power of a court or tribunal established under a law of the State or the Commonwealth is in question; or

(c) in which the court grants leave to intervene on the ground that the proceedings raise an issue of public importance -

for the purpose of submitting argument on the question in issue."

1. The Judicial Review Act provides in s 39, that the Attorney-General may, on behalf of the Crown, intervene in a proceeding before the Supreme Court under that Act.
2. Even though the statutory basis of the intervention in this case has not been made clear, there could, in my respectful view, be no doubt about the Attorney's right to intervene. The Judicial Review Act provision had application. Moreover, it is a case in which the interpretation of Tasmanian legislation was in question and so the Crown Proceedings Act, s 16(1)(a) also applied. It was also a proper case for the grant of leave under s 16(1)(c), although I am not sure whether leave was sought. Issues concerning the validity of delegations to a forest practices officer employed by STT and decisions made pursuant to the delegations were of general importance to the executive, going to the implementation of the State's forest practices system.
3. However there is a distinction between the right to intervene and the entitlement of an intervenor to costs against an unsuccessful party. That is so even when the contentions of the intervenor are accepted by the Court. The Supreme Court Civil Procedure Act 1932, s12(1), provides:

"(1) Subject to the provisions of this Act and the Rules of Court, and to the express provisions of any special statute which is not expressly or impliedly repealed by this Act, the Court and every judge thereof, whether sitting in court or in chambers, shall have jurisdiction to award costs in all causes and matters whatsoever (including proceedings for, or on, or in connection with an order of review under the Judicial Review Act 2000 or a writ of habeas corpus and causes and matters dismissed for want of jurisdiction) instituted in the Court or brought before the Court or a judge thereof by or against any party or person, including the Attorney-General and any body politic."

1. That provision expressly gives the power to the Court, or a judge, jurisdiction to award costs in any proceedings "instituted in the Court or brought before the Court or a judge thereof by or against any party or person, including the Attorney-General ...". The question arises whether these proceedings were brought "by or against" the Attorney, but, in any event, the costs discretion conveyed by s 12 is subject to the provisions of that Act and the Rules of Court, and to "the express provisions of any special statute which is not expressly or impliedly repealed by this Act."
2. The Crown Proceedings Act, s 5, provides that proceedings may be brought by and against the Crown. The same procedural and substantive law applies to such proceedings as in proceedings between subjects: s 5(1)(b). However s 16(3) of that Act applies to the right of the Attorney to intervene in proceedings and expressly deals with costs. It provides that the court may make an order for costs against the Crown, albeit only in special circumstances, but makes no mention of a power to award of costs in favour of the Attorney as intervenor. Section 16(2) provides that the Attorney-General has the same right of appeal in proceedings in which he or she intervenes as a party to those proceedings. To me, it is to be inferred from s 16(2) that although the Attorney has the same right of appeal as a party, the Attorney is not a party to the original proceeding. The Judicial Review Act contains, in s 39, a similar but not identical provision. In contrast to the Crown Proceedings Act provision, the Attorney-General who intervenes is taken to be party to the proceeding. However, like the Crown Proceedings Act, the Judicial Review Act provides for an order for costs against the Attorney, but makes no mention of an award of costs in favour of the Attorney. The Judicial Review Act provision is s 39 and is expressed in these terms:

"S 39 If the Attorney-General intervenes in a proceeding -

(a) the Attorney-General is taken to be a party to the proceeding; and

(b) the Court may, in the proceeding, make such order as to costs against the Crown as the Court considers appropriate."

1. These provisions make express reference to costs orders against the Crown but do not make express reference to the making of orders in favour of the Crown or the Attorney-General. In my opinion they displace the general costs discretion of the Court such that the costs may be awarded against but not in favour of the Attorney-General as intervenor. Counsel for the Attorney-General drew attention to the decision of Flick J in Dunstan v von Doussa (No 2) [2008] FCA 827 in support of the contrary conclusion. That was a case in which the Commonwealth Attorney-General intervened under the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 18. That provision permitted intervention by the Attorney in a proceeding before the Federal Court or the Federal Magistrates Court, deemed the Attorney to be a party to the proceeding but also provided that the court "may, in the proceeding, make such order as to costs against the Commonwealth as the court thinks fit". Flick J considered that the purpose of the provision was "elusive" although his Honour reasoned that if the Attorney-General is "deemed to be a party to the proceeding", the Attorney was "presumably thereby exposed to the prospect of costs either being awarded against him or in his favour (as with any other party)." After citing O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 1079; 55 FCR 591 Flick J concluded that costs could be awarded both for and against the Attorney-General.
2. With great respect to his Honour I have reached the contrary conclusion. His Honour's reliance on O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) was misplaced. In that case Spender J considered the effect of s 78A(2) of the Judiciary Act 1903 (Cth), which also expressly permitted the making of costs orders against the Attorney-General but did not make express reference to the making of orders in favour of the Attorney-General. His Honour decided that where there was intervention by an Attorney-General under that subsection the court did not have power to order costs in favour of the intervening Attorney-General. At 595 [20], his Honour said:

"Section 78A(2) provides that where an Attorney-General of the Commonwealth of Australia intervenes in proceedings in a court under that section, the court may make such order as to costs against the Commonwealth or the State as the case may be as the court thinks fit. In my opinion, where there is intervention by an Attorney-General under that section, the court does not have power to order costs in favour of the intervening Attorney-General.

1. Spender J contrasted subs (2) of s 78A with subs (3) which concerned intervention for the purpose of institution or prosecution of an appeal and permitted an order for costs both against and in favour of the intervening Attorney. His Honour concluded that s 78A constituted a qualification to the broad statement made by the Full Court of the Federal Court in United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; 20 FCR 520 that "[a]n intervener, whether pursuant to s 12 of the AD(JR) Act, 06, r 8(1) of the Federal Court Rules, s 78A of the Judiciary Act or otherwise, becomes a party to the proceedings with the benefits and burdens of that status." His Honour drew a distinction between intervention under the Judiciary Act, and intervention under the Trade Practices Act 1974, s 163A, which created a broad right to intervene but included no express provision as to costs.
2. The same conclusion about the effect of Spender J's reasoning in O'Keefe was reached by Mossop AsJ in Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 3) [2016] ACTSC 249. In my respectful view, the reasoning is correct and applies here. The terms of the Judicial Review Act, s 39, and the Crown Proceedings Act, s 16, are equivalent to the terms of s 78A(2) of the Judiciary Act 1903 (Cth) which his Honour was considering. The provisions displace the general costs discretion and lead to the result that the Court does not have power under those sections to order costs in favour of the intervening Attorney-General. The conclusion just stated is not intended to extend to the costs of an appeal which the Attorney-General may bring in accordance with its right to do so under s 16(2) of the Crown Proceedings Act. Moreover, I express no view about whether an intervenor may recover costs in the event of an unsuccessful appeal brought by another party. That will be a matter for the appeal court.
3. Counsel for the Attorney referred also to the decision of Porter J in Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52. I do not find the case to be of much assistance. His Honour considered an application for costs against the Attorney-General who had been given leave to appear as amicus curiae, not as intervenor.
4. Had I concluded that power to award costs existed in favour of the Attorney I would have made such an order. There is no "usual practice" of ordering costs in favour of interveners when the outcome of a proceeding accords with the arguments advanced by them: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229. However the issues raised by the applicant in these proceedings were broader than those directly affecting STT. It is correct to assert that the applicant is entitled to choose who it wished to join as parties to the proceeding. However it correctly named the Authority as a respondent. It was the Authority's act of delegation and the decisions made under it which were under direct challenge. I make no criticism of the Authority's decision to submit to the jurisdiction of the Court. It seems to me to be a little different than the situation considered in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 to the effect that a decision making tribunal ordinarily should not take an active part in judicial review proceedings and, rather, should abide the event. Be that as it may, the Authority's decision to not take part in the proceedings led to the situation where, unless the Attorney intervened, there would have been no contradictor on behalf of the State to the applicant's contentions about the validity of the Authority's delegations. I agree with the submission of counsel for the Attorney that the intervention was necessary to represent the interests of executive government manifested in the Authority and to protect the wider interests of the State in the integrity of the forest practices system directly called into issue by the application. The applicant was the unsuccessful party.
5. I order:

(a) the applicant is to pay the second respondent's costs of the originating application; > > (b) the applicant will pay to the second respondent any damages sustained because of the injunction ordered on 11 April 2022 and that the Court or a judge thinks ought to be paid by the applicant, such damages to be assessed on a date to be fixed. Liberty to apply generally in relation to the manner in which damages are to be assessed, if not agreed; > > (c) the application made by the Attorney-General that the applicant pay the Attorney-General's costs of the originating application is refused.