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[2021] FCAFC 20
Federal Court of Australia (Full Court)
2021-02-26
Derrington JJ
Original judgment source is linked above.
THE COURT: 1 On 3 February 2021, the Full Court delivered reasons for judgment as to why the separate question was answered affirmatively and why the application for declaratory relief was dismissed (see Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5). 2 The parties have taken advantage of the opportunity to provide brief written submissions regarding costs and the implications of the Full Court's determination of the separate question on the future conduct of the substantive proceeding. The Court indicated that it would determine these matters on the papers and without a further oral hearing. 3 For the following reasons, we consider that there should be no order for costs.
(a) The issue of costs 4 It is well established that the Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is broad, but must be exercised judicially and consistently with the purpose of the power and taking into account all relevant facts and circumstances. 5 As is often the case, the parties disagreed on the application of those principles to the circumstances here. The applicant contended that each party should bear its own costs of the separate question. The first respondent contended that the applicant should pay its costs of the separate question, assessed as a lump sum, and that the applicant should not be excused from having to pay the Commonwealth's costs because there was more than one respondent. For similar reasons, the second respondent contended that the applicant should pay its costs of the separate question, assessed as a lump sum, and that the applicant should not be excused from having to pay its costs merely because it was one of three respondents. The third respondent adopted a similar position and added that the Court should now dismiss the amended originating application. The applicant did not resist that latter contention. 6 For the following reasons, we consider that this is an appropriate case to depart from the usual costs order and order that each party bear its own costs. 7 First, it is important to acknowledge the significance of the breadth of the standing provision in s 475(7) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Under s 475(1)(b) of the EPBC Act, the applicant brought the proceeding as an "interested person" within the meaning of s 475(7), which provides: 475 Injunctions for contravention of the Act … Meaning of interested person - organisations (7) For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met: (a) the organisation's interests have been, are or would be affected by the conduct or proposed conduct; (b) if the application relates to conduct - at any time during the 2 years immediately before the conduct: (i) the organisation's objects or purposes included the protection or conservation of, or research into, the environment; and (ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment; (c) if the application relates to proposed conduct - at any time during the 2 years immediately before the making of the application: (i) the organisation's objects or purposes included the protection or conservation of, or research into, the environment; and (ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment. 8 In the Agreed Facts, the parties agreed that the applicant was a Foundation whose principal objects are the protection and enhancement of the natural environment and the provision of information and education about the natural environment. Moreover, they agreed that over the past two years, the Foundation has engaged in a range of activities for the protection and conservation of, and research into, the environment. There is no reason to doubt that the applicant's intention in bringing the proceeding was to ensure compliance with relevant provisions of the EPBC Act and to preserve the habitat of the swift parrot. No respondent suggests that the applicant was motivated by personal gain or advantage. 9 The significance of a broad standing provision in determining costs in the context of unsuccessful "public interest litigation" was emphasised in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72. 10 In Oshlack, the standing provision in s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) was at least as broad, and perhaps even marginally broader, than that in s 475(7) of the EPBC Act. Under s 123(1), "[a]ny person" was entitled to bring proceedings in the Land and Environment Court of NSW for an order to remedy or restrain a breach of the EPA Act, "whether or not any right of that person has been or may be infringed by or as a consequence of that breach". Section 69(2) of the Land and Environment Court Act 1979 (NSW) provided inter alia that costs of and incidental to proceedings in the Court were in the Court's discretion and that the Court might determine by whom and to what extent costs were to be paid. 11 The primary judge in the Oshlack litigation dismissed the applicant's challenge to the validity of the grant of development consent, but held that there should be no order as to costs. This decision was reversed on appeal by the NSW Court of Appeal, at least insofar as it related to the costs of one of the respondents. On further appeal, a majority of the High Court upheld the primary judge's decision. At [20] of the joint reasons for judgment of Gaudron and Gummow JJ, their Honours summarised the primary judge's reasons for concluding that there be no order as to costs (footnotes omitted): 20 In exercising the discretion conferred by s 69(2) of the Court Act by a determination that there be no order as to costs, despite the dismissal of the appellant's application for injunctive and declaratory relief, the primary judge took various matters into account. They included the following: (i) The "traditional rule" that, despite the general discretion as to costs being "absolute and unfettered", costs should follow the event of the litigation "grew up in an era of private litigation". There is a need to distinguish applications to enforce "public law obligations" which arise under environmental laws lest the relaxation of standing by s 123 have little significance. (ii) The characterisation of proceedings as "public interest litigation" with the "prime motivation" being the upholding of "the public interest and the rule of law" may be a factor which contributes to a finding of "special circumstances" but is not, of itself, enough to constitute special circumstances warranting departure from the "usual rule"; something more is required. (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. (vi) It followed that there were "sufficient special circumstances to justify a departure from the ordinary rule as to costs". … 12 Justices Gaudron and Gummow said that the true issue was not whether or not the proceeding involved "public interest litigation", but rather whether the subject matter, scope and purpose of s 69 was such as to justify the Court of Appeal concluding that the primary judge's reasons were extraneous to any of the objects the legislature could have had in mind in enacting s 69. At [49], their Honours stated (footnotes omitted): … 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. 13 To similar effect, see Kirby J's observations at [134] of Oshlack. 14 Thus, the High Court majority in Oshlack decided that the primary judge in that case had not taken into account any extraneous considerations in the exercise of the discretion as to cost under s 69 of the Land and Environment Court Act. By parity of reasoning, in the context of the present case, the exercise of the discretion under s 43 of the FCA Act may potentially have regard to such considerations, including in relation to the operation of s 43 upon proceedings instituted under s 475 of the EPBC Act. 15 That is not to say that merely because an "interested person" has initiated unsuccessful public interest litigation means that there will be a departure from the usual rule as to costs. Rather, as Logan J pointed out in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661; 194 FCR 250 at [7], in a matter arising under the EPBC Act, if there is to be an exception in respect of proceedings brought by "interested persons" from the usual rule as to costs, "that exception must be found in the circumstances of a particular case". 16 Nor is the matter appropriately determined by a "tick the box" approach. Nevertheless, it is appropriate to note that many of the matters relied upon by the primary judge in Oshlack also happen to be present here. In particular: (a) The separate question raised a difficult question of statutory construction. That is reflected in both the lengthy submissions presented orally and in writing (19 pages, 18 pages and 15 pages by the first, second and third respondents respectively) and also in the Full Court's relatively lengthy reasons for judgment. The third respondent pointed out that the applicant and Mr Brown personally have now initiated four unsuccessful attempts in challenging the legal status of Tasmania's Regional Forest Agreement. Contrary to the third respondent's claim, however, we do not accept that those four attempts were based on the same, or substantially similar, arguments to those raised in the present proceeding. If they did, one would have expected issues of estoppel and/or res judicata to have been raised. As the Full Court noted at [79], the argument advanced by the applicant in this case had not been put forward in the earlier Full Court decision in Forestry Tasmania v Brown [2007] FCAFC 186; 167 FCR 34. Furthermore, the applicant's second primary contention was not raised at all in that earlier litigation (see the Full Court at [81]). (b) Although the applicant's construction of the definition of an "RFA" was ultimately unsuccessful, it was plainly arguable, as is again reflected in the lengthy written and oral submissions made by each of the respondents, as well as in the Full Court's relatively lengthy reasons for judgment. (c) The separate question raised issues of broader public importance, as is partly reflected in the fact that the Chief Justice determined that a Full Court should be constituted to hear and determine the matter. The issue was one of general importance, not only for environmentalists, but also for the many people who are involved in or are dependent upon the forestry industry in Tasmania. Some parts of the Full Court's reasons, particularly those relating to the proper construction of relevant provisions of the EPBC Act, may also be relevant to other Commonwealth-State Regional Forest Agreements. (d) Although we accept that the proceeding may properly be described as "public interest litigation", we do not suggest that this matter is determinative. As Kirby J observed in Oshlack at [134], while the legitimate pursuit of a public interest is a legitimate matter to take into account, "litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation". 17 For all these reasons, and with particular attention to the facts and circumstances of this proceeding, we consider that there should be no order as to costs.
(b) Future conduct of the proceeding 18 In our previous reasons for judgment relating to the separate question we observed at [96] that it was a matter for the primary judge to determine the future conduct of the substantive proceeding. As noted at [5] above, the applicant accepted that the Full Court's determination of the separate question also determined its amended originating application, which should be dismissed. We remain of the view, however, that the primary judge should determine whether or not the amended originating application should be dismissed because there may be other issues which require determination by his Honour, including any application for costs other than in respect of the determination of the separate question. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Griffiths, Moshinsky and SC Derrington.
Bob Brown Foundation Inc
Commonwealth of Australia