Bob Brown Foundation Inc v Minister for the Environment and Water

1. The second respondent pay the applicant's costs of the proceeding (including the costs of the applicant's application for an interlocutory injunction), as agreed or taxed.
2. In relation to the costs of the first respondent, there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 On 25 July 2022, I published reasons for judgment following the final hearing of this proceeding: Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873. For the reasons there set out, I concluded that ground 1 of the applicant's application was established. It was therefore unnecessary to deal with grounds 2 and 3. These reasons for judgment deal with issues of costs. These reasons should be read together with the reasons published on 25 July 2022. I will adopt the abbreviations used in the 25 July 2022 reasons. 2 The parties have filed written submissions, and responding written submissions, on costs. The positions of the parties can be summarised as follows: (a) The applicant contends that the respondents should pay the applicant's costs of the proceeding, including the costs of the applicant's application for an interlocutory injunction. (The application for an interlocutory injunction was dealt with in Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498.) As to whether these costs should be borne by the first respondent or second respondent, the applicant states in its reply written submissions that it does not wish to make submissions on this issue. (b) The Minister submits that there should be no order for costs against the Minister, having regard to the limited role adopted by the Minister in the proceeding. (c) MMG submits that the appropriate costs orders are: (i) The Minister pay the applicant's costs of the proceeding, save for the costs referred to in (ii) and (iii) below. (ii) MMG pay the applicant's costs of the hearing on 1 July 2022. (That hearing related to an issue of interpretation that had arisen concerning MMG's undertaking as recorded in orders made on 2 May 2022.) (iii) The applicant bear its own costs in relation to the affidavit of Dr Webb dated 27 June 2022. (The applicant filed that affidavit in advance of the final hearing, but did not call Dr Webb to give evidence or seek to rely on the affidavit.) (iv) The applicant pay MMG's costs of and incidental to the applicant's application for an interlocutory injunction. (v) MMG otherwise bear its own costs of the proceeding. In the alternative, MMG submits that, if the Court were minded to order that MMG pay the applicant's costs, MMG should not be ordered to pay any more than 50% of those costs. 3 Section 43 of the Federal Court of Australia Act 1976 (Cth) confers upon the Court a discretionary power to award costs. The principles relating to the discretion to award costs under s 43 are well-established: see, eg, Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11]-[12] per Black CJ and French J; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]-[5] per Finkelstein and Gordon JJ; Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370 at [11], [16]-[18] per Dowsett, Middleton and Gilmour JJ. 4 In the present case, there is no issue that the applicant has been successful in the proceeding and that there should be a costs order in its favour in relation to the proceeding generally. The issues that arise are: (a) should those costs be borne by the Minister or MMG, or partially by the Minister and partially by MMG? (b) what costs order should be made in respect of the applicant's application for an interlocutory injunction (the costs of which were reserved)? 5 I will consider each of these issues in turn. 6 In relation to the first issue, as noted above, MMG submits that the Minister should pay the applicant's costs of the proceeding (with certain exceptions). In its written submissions on costs, MMG refers to the principle articulated by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman) at 35-36. MMG submits that the presence of MMG meant that there was an interested party who could assist the Court on the legality of the impugned decision. MMG submits that, although a footnote in the Minister's concise statement stated that, in submissions, the Minister would seek to assist the Court to make the correct decision, subject to any appropriate constraints guided by the Hardiman principle, in fact the Minister's role in the litigation was not limited in scope or confined to matters that were not sufficiently raised by MMG. MMG refers to the Minister's concise statement, and submits that it traversed each of the applicant's three grounds in detail. MMG submits that the Minister also made detailed written and oral submissions on ground 1, which was the ground on which the applicant succeeded. Further, MMG submits, the Minister made detailed written and oral submissions on relief. MMG submits that the Minister "adopted an adversarial stance as an active contradictor and protagonist" in the proceeding. 7 MMG also submits that there are powerful factual considerations that warrant the exercise of the Court's discretion to order that the Minister pay the applicant's costs. These are set out in paragraphs 12 to 15 of MMG's written submissions and are, in summary: (a) the finding of the Court that ground 1 was made out because the Delegate did not comply with the obligation to take account of the precautionary principle - in this sense, the success of the applicant is wholly attributable to the failure of the Delegate's decision-making processes; (b) it is MMG whose interests are adversely affected; (c) by the Referral, MMG proposed to adopt specific measures for the protection of the Tasmanian Masked Owl; and (d) MMG was the natural contradictor, and MMG did not by its conduct or submissions prolong the matter unreasonably. 8 Insofar as MMG submits that the Minister "adopted an adversarial stance as an active contradictor and protagonist", I do not accept that characterisation. While it is true that the Minister's concise statement provided a substantive response to each of the applicant's grounds, that document was provided at a relatively early stage of the proceeding and was subject to the qualification that the Minister would seek to assist the Court "subject to any appropriate constraints guided by the Hardiman principle". In any event, I consider that the focus should be on the approach adopted by the Minister at the final hearing. At that hearing, the Minister's submissions were (consistently with the Hardiman principle) limited to the "powers and procedures" of the Minister under the relevant provisions of the EPBC Act (see Hardiman at 36). The Minister's submissions were limited to: matters of legal principle regarding the precautionary principle (in relation to ground 1); the approach to identifying a component decision (in relation to ground 3); and issues as to the utility of the proceeding and relief: see the Minister's written submissions dated 12 July 2022 at paragraph 7. 9 Further, although the Minister made oral submissions at the final hearing, those submissions did not increase the number of hearing days. The final hearing occupied two days. The applicant's submissions were completed on the first day, and MMG's submissions commenced that day. MMG's submissions continued on the second day. These were followed by the Minister's submissions. Even if the Minister had not made oral submissions, the proceeding would have occupied two days. 10 In my view, having regard to the role played by the Minister (as outlined above), the appropriate order as regards the Minister's costs of the proceeding is that there be no order as to costs. This is the general approach taken as to costs where a decision-maker makes submissions consistently with the Hardiman principle: see Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 216 at [67], [176], [207]; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609 at 612. The matters raised by MMG, including the particular factual matters, do not justify a different approach. Insofar as MMG relies on the fact that the Court found that ground 1 was made out because the Delegate did not comply with the obligation to take account of the precautionary principle, this is a matter that precedes the litigation and is not relevant to the question of costs. It follows that the applicant's costs of the proceeding generally should be borne by MMG and not by the Minister. 11 Insofar as MMG submits that the applicant should bear its own costs in relation to the affidavit of Dr Webb dated 27 June 2022, this is a matter that can be addressed in the course of taxation. I do not propose to consider, at this stage, whether the costs of this affidavit were fairly and reasonably incurred. 12 I turn now to consider the second issue identified above, namely what costs order should be made in respect of the applicant's application for an interlocutory injunction. As noted above, MMG submits that the applicant should pay MMG's costs of and incidental to the application for an interlocutory injunction. MMG's submissions are premised on the applicant's interlocutory application having been unsuccessful. However, I do not accept that premise. At the hearing of the application, I asked senior counsel for MMG whether MMG was prepared to offer an undertaking to the Court reflecting the proposed method of carrying out the works described in paragraph 32 of Mr Pandelis's affidavit: see the 2 May 2022 reasons at [13]. Senior counsel obtained instructions to offer an undertaking. This was expressed in more precise terms than the description in paragraph 32 of the affidavit. It was in light of that undertaking that the applicant's interlocutory application was dismissed. In my reasons for judgment of 2 May 2022, I stated that, had MMG not offered to give that undertaking I would have considered it appropriate to make an order restraining MMG, until the determination of the proceeding, or further order, from carrying out the proposed action unless it complied with such measures: see the 2 May 2022 reasons at [58] and [60]. In these circumstances, I consider that the applicant was substantially successful in its interlocutory application. While the relief sought by the applicant was broader than the undertaking that was given by MMG (and the interlocutory injunction that I would have ordered if the undertaking had not been offered), I nevertheless consider that the applicant was successful. In light of these matters, and the applicant's success at the final hearing, I consider it appropriate to order that MMG pay the applicant's costs of the application for an interlocutory injunction. 13 For the above reasons, I will make orders that: (a) MMG pay the applicant's costs of the proceeding (including the costs of the applicant's application for an interlocutory injunction), as agreed or taxed; and (b) in relation to the costs of the Minister, there be no order as to costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.