Botany Bay City Council v Minister of State for Transport & Regional Development

REASONS FOR JUDGMENT 1 These reasons are to be read in conjunction with my reasons published on 3 November 1998 that dealt with the substantive issues in these two matters. The one question then left outstanding was that of costs. Submissions on costs have been received and, after hearing counsel, I have ordered that in each proceeding the applicant or applicants pay the respondents' costs of the applications. My reasons for doing so are, shortly, these. 2 The power to award costs given in s 43 of the Federal Court of Australia Act 1976 (Cth) is, as has often been acknowledged, absolute and unfettered in its terms though it must be exercised judicially: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732-733. And so there are in consequence no absolute rules either that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party, or that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party: Oshlack v Richmond River Council (1998) 152 ALR 83 at 94. Nonetheless the ordinary, though by no means invariable, consequence of an unsuccessful claim is that the unsuccessful party be ordered to pay the other party's costs on a party and party basis: Friends of Hinchinbrook Society Inc v Minister for the Environment [1998] FCA 432; Re Wilcox, above. 3 That ordinary consequence is, in my view, the appropriate one that ought ensue in the present case - although I would add that no question has been raised that some consideration be given to the partial award of costs on an indemnity costs basis. I have in my earlier reasons expressed some dissatisfaction with the Randwick and Woollahra proceeding. I will not enlarge upon that here. 4 In both proceedings the unsuccessful applicants have sought to be relieved in whole or in part of the burden of an adverse costs order. The basis upon which they do so is that they acted as local government bodies that, without any personal interest in the proceedings, sought to ensure that the Commonwealth conducted itself lawfully in a matter of great public significance extending beyond the geographical confines of their respective local government areas. They assert, in short, that this was "public interest" litigation: cf Oshlack v Richmond River Council, above. While unsuccessful they contend that the proceedings were of substantial benefit to the Commonwealth in clarifying legal issues of significant public concern; they exacted public accountability; and the proceedings were, in effect, for the ratepayers of Sydney generally. 5 For my own part, I consider that the alleged disinterest of the applicants has been overstated. They have in some degree been participants and lobbyists on behalf of their ratepayers in the processes leading to the adoption and implementation of the Long Term Operating Plan for Sydney (Kingsford Smith) Airport. This litigation is an extension of that. Furthermore their disinterest can in a sense be equated with that of a trustee suing for the benefit of its beneficiaries. Equally I do not consider that disputes between tiers of government ought stand outside the usual practice in relation to costs simply because the actions of government can be said to involve matters of public interest and because the suits themselves give rise to governmental accountability: government, after all, is constitutionally obliged to act in the public interest: cf Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191. Furthermore I do not regard the benefits, such as they are, as are said to arise from the clarification of the law, as being a factor that ought disentitle a successful party from an order because that clarification can be said to be beneficial to it. There is no "double satisfaction" here to be guarded against. 6 The nature and purpose of the present litigation, the manner of its conduct, and the comprehensively unsuccessful nature of its outcome are all factors of which I ought properly to take account as well. I need not retraverse these matters here. Whatever the alleged public interest dimension to the proceedings - and it has been significantly overstated in my view - it is by no means of such character in the circumstances as to justify depriving the respondents in part, let alone in whole, of a costs award. Hence my orders in these matters. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.