Findings: departure from the usual costs rule not justified
81 In summary, I find that, first, the proceedings might be able to be characterised as being brought in the public interest; secondly, the nature, extent and other features of the public interest involved in the litigation are limited and there are no other special circumstances which would justify departure from the usual costs rule; and thirdly, there are countervailing factors that also speak against departure from the usual costs rule.
82 In relation to the first step, the applicant sought by the litigation to uphold and enforce public law obligations under natural resources legislation, the Mining Act. The applicant claimed that decisions had been made to renew a mining authority and to partially transfer it in breach of certain statutory obligations. It is true that the statutory obligations concerned were technical. Nevertheless, they form part of a regulatory scheme for ensuring the wise use of the mineral resources of the State. If the breaches had been established, the regulatory scheme would have been impaired to some degree.
83 As Basten JA suggested in Hastings Progress Association Inc v Tweed Shire Council (No 3) at [7], the applicant's attempt through the litigation to ensure that the natural resources legislation of the Mining Act was not breached with impunity constitutes a public interest of a sufficient kind to characterise the litigation as being brought in the public interest.
84 I do not find, however, that the litigation directly sought to uphold the public interest of environmental protection, notwithstanding the applicant's submission that this was the public interest served by the litigation. As CMA and the Minister correctly submit, the litigation did not raise any issue relating to the protection of the environment of the Liverpool Plains. The litigation concerned only the validity or otherwise of the renewal and partial transfer of exploration licences. None of the statutory provisions claimed to have been breached directly concerned environmental protection. Moreover, the applicant adduced no evidence that prospecting activities authorised by the exploration licences in the past have caused, or in the future pose a risk of causing, harm to the environment of the Liverpool Plains.
85 In relation to the second step, a closer examination of the nature, extent and other features the public interest involved in the litigation reveals that there is no circumstance or factor other than the mere characterisation of the litigation as having been brought in the public interest.
86 The litigation did not raise any novel issue of general importance. As the Minister submits, the case turned on the application of well-known and undisputed principles of statutory construction and on fact finding in the particular circumstances. As a consequence, the litigation has not, in any material respect, contributed to the proper understanding, development or administration of the law in respect of the renewal or partial transfer of exploration licences under the Mining Act.
87 As I have noted above, the litigation did not directly concern the environment. Hence, it is not necessary or appropriate for the Court in exercising the costs discretion in this case to examine the environment of the Liverpool Plains or its value or importance.
88 The litigation affected the holder of the exploration licence, CMA, and the landowners whose land was within the area of the exploration licence. CMA's entitlement to carry out prospecting activities on the landowners' properties depended on the Court's determination of the applicant's challenge to the validity of the exploration licence. However, the litigation did not affect the broader community as submitted by the applicant for the reason that the litigation did not directly concern the protection of the environment of the Liverpool Plains.
89 Finally, whilst it may be correct to say that the applicant, as an incorporated association, did not stand to gain financially from bringing the proceedings, the applicant was merely the vehicle used by its members to bring the proceedings. The majority of the members of the applicant are landowners whose properties are within the area of the exploration licence challenged. The private interests of these landowner members, both legal and financial, did stand to be affected materially by the litigation.
90 In relation to the third step, there are countervailing factors that support application of the usual costs rule. As I have noted, the litigation was of considerable consequence for the private interests of a majority of the members of the applicant. Basten JA in Hasting Point Progress Association Inc v Tweed Shire Council (No 3) noted that where the applicant is an incorporated association, in exercising the costs discretion, a court "is entitled to look behind the legal structure of the applicant to identify whose interests, both legal and financial, may be affected in a practical sense" (at [11]). Here, the landowners' properties are of high agricultural productivity and high value. The landowners have a significant financial interest in the litigation.
91 The existence of this significant financial interest of the landowners who are members of the applicant is relevant to the issue of ensuring access to justice, which is a rationale for departure from the usual costs rule. The landowners have the financial incentive and means to fund the litigation and hence achieve access to justice. In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and the Minister for Mineral Resources (No 1), I found that the applicant would continue with the litigation even if the Court did not make an order capping the costs the applicant would be required to pay if the litigation were to be unsuccessful (at [61], [62]). One reason was that the majority of members of the applicant were landowners with financial incentive and means to fund the litigation. This has proved correct. The litigation continued notwithstanding my decision not to make a maximum costs order. Indeed, the litigation will continue in the future as the applicant has appealed my substantive decision in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and the Minister for Mineral Resources (No 2) to the New South Wales Court of Appeal. Of course, that is the applicant's right but I mention this fact in support of my finding that costs are not a barrier to this applicant achieving access to justice.
92 I have also noted that the issues raised by the litigation were narrow, involving discrete points of statutory interpretation and fact finding. They do not have broader ramifications.
93 In conclusion, the particular circumstances relating to the public interest involved in this litigation as well as other circumstances relating to the applicant and its litigation, do not provide justification for departure from the usual costs rule.