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[2010] NSWLEC 59
Land and Environment Court (NSW)
1988-06-24
Preston CJ, Cripps CJ
Original judgment source is linked above.
The applicant's submissions on the public interest 62 The applicant submits that the proceedings should be characterised as having been brought in the public interest. The applicant relies on the five considerations referred to by Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2).
Public interest served 63 The applicant submits the public interest served by the litigation is the protection of the environment of the Liverpool Plains and, in particular, the region's prime agricultural land and natural waterways, from unauthorised and potentially harmful activities.
64 The groundwater aquifers and surface water flows in the area covered by EL6505 provide stock, domestic, irrigation and town water supplies for Caroona and neighbouring towns including Quirindi, Gunnedah, Spring Ridge, Curlewis and the Walhallow Aboriginal Community. The area forms part of the Namoi Valley catchment. Water from this region forms part of the headwaters of the Murray-Darling Basin. 65 The climate, soils and unique groundwater of the Liverpool Plains makes the Plains one of the most fertile and drought-resistant agricultural areas in Australia. The applicant submits that it wants to ensure that the unique environmental attributes of the area that are the reason for it being so productive, are not damaged by coal mining. 66 The applicant submits that the relatively less potential for damage to the environment under the authority of an exploration licence (as opposed to a mining lease) does not detract from the public interest sought to be served in this case which was to ensure that, if there was no legal basis for potentially environmentally damaging activities conducted pursuant to EL6505, the true legal position would be declared by the Court.
Wide public interest 67 The applicant submits that the public interest in the subject matter of the proceedings extends beyond the membership of the applicant to include the local community of Caroona and the broader community. A rally organised by the applicant in September 2008 attracted about 300 people. In May 2009, the Senate Select Committee on Agricultural and Related Industries toured the farmland on the Liverpool Plains and held hearings at Gunnedah on the issue of food security and mining on the Liverpool Plains. The applicant submits the broader issues associated with allowing exploration activities within the area occupied by the mining authorities challenged in this case and the activities of the applicant, have attracted a significant amount of local and regional media interest.
Public law litigation 68 The applicant sought judicial review in relation to the process by which CMA obtained EL6505. The applicant submits that the proceedings tested provisions within the Mining Act 1992 relating to the grant and transfer of exploration licences that had not previously been the subject of judicial consideration. All rights to minerals in New South Wales vest in the Crown and the Minister for Mineral Resources controls the right to explore for these minerals. The applicant submits, therefore, that the litigation has served to clarify the Minister's powers and obligations when granting and transferring mineral authorities and thereby has an application beyond the circumstances of this particular case. The applicant submits that in recent years the State has experienced a surge in exploration licence applications, with close to 500 applications for mineral and petroleum exploration licences being received by the Department of Mineral Resources in 2006-07.
Applicant's motivation and absence of pecuniary interest 69 The applicant submits that it is a community group whose aims relate to preventing mining causing harm to the local environment and community. The applicant submits that it, as an incorporated association, has no pecuniary interest in the proceedings. The applicant did not seek damages, and the review sought was confined to declarations and orders arising from the Court's findings on the validity of the mining authorities challenged.
CMA's submissions on the public interest 70 CMA submits that the proceedings should not be characterised as public interest litigation, but even if they were to be, there is no additional or special factor which would warrant the Court departing from the usual costs rule.
71 CMA contests the applicant's assertion that the public interest served by the litigation is the protection of the Liverpool Plains for two reasons. First, the proceedings did not raise as an issue or seek injunctive relief to prevent harm to the environment of the Liverpool Plains. The proceedings only concerned the validity or otherwise of an exploration licence. An exploration licence only permits prospecting operations not mining and involves minimal impact. The time to protect the environment of the Liverpool Plains is at the mining, not the prospecting stage. That has yet to occur. 72 Secondly, CMA submits the applicant's concern is without evidentiary foundation. The applicant did not tender evidence of any environmental harm having ever occurred from exploratory drilling of the land undertaken by CMA. CMA noted that it has undertaken exploration pursuant to the exploration licence challenged since 2006 and the government has undertaken exploration of a much larger area since 1980. Yet, no evidence was tendered of any environmental harm having occurred by reason of those activities. Furthermore, no evidence was tendered of even any risk of harm to the environment of the Liverpool Plains as a result of the grant of the exploration licence.
The Minister's submissions on the public interest 73 The Minister also submits that the proceedings are not properly characterised as public interest litigation, but even it they were to be, there are no additional or special circumstances that would justify the Court departing from the usual order as to costs. 74 The Minister submits the proceedings did not involve the resolution of any issue of public interest. The Minister rejects as misconceived the applicant's submission that the public interest served by the litigation was the protection of the environment of the Liverpool Plains from coal mining. The proceedings involved judicial review, not merit review, of the Minister's decisions. Consequently, the Court was not required to, and did not, consider or resolve any issue relating to the protection of the environment of the Liverpool Plains in the proceedings. 75 Instead, the Minister submits, the proceedings sought to protect the private interests of the landowners who make up the majority of the members of the applicant. 76 The Minister further submits that the proceedings did not involve any additional or special circumstance. The proceedings did not raise novel questions of general importance or break new ground on a matter of legal principle. Each of the three categories of claim were straight forward and could be and were resolved by established principles of statutory interpretation and fact finding. 77 The first category of claim (that essential preliminaries to the grant of the exploration licence (EL6505) under Pt 3 of the Mining Act had not been complied with) fell away at the hearing because the Minister and CMA did not contend that Pt 3 was the source of power to transfer the exploration licence. 78 The second category of claim involved challenging the validity of an earlier mining authority (A216) with a view to undermining the legal foundation of EL6505 on the basis that it had been renewed in breach of s 114(6) and s 114(3) of the Mining Act. The alleged breach of s 114(6) (relating to whether the Minister was satisfied there were special circumstances justifying the renewal of more than half of the area of A216) turned on the facts of each renewal and did not involve any issue of principle, either environmental or legal. The issue in relation to s 114(3) (relating to whether the mining authority had been granted for a term greater than the maximum five year term) was whether a breach of that section (which was admitted by the Minister) resulted in A216 being invalid. The issue was resolved by the application of well-known and undisputed principles of statutory construction.
79 The third category of claim challenged the validity of the transfer of A216 on two grounds: one that there was no document of transfer and the other that the term of A216 exceeded the maximum prescribed by s 123(1)(b) of the Mining Act. Both grounds were held by the Court to be founded on a misconstruction of the statutory scheme. The claims were resolved by applying orthodox principles of statutory construction. 80 The Minister submits, therefore, that the Court should reach the same conclusion as that reached by Jagot J in another case claimed to be public interest litigation, Drake-Brockman v Minister for Planning (No 2) [2007] NSWLEC 777, namely that the case "turned on the application of well-known and undisputed principles of construction and fact finding in the particular circumstances. While of interest and providing clarity in the general sense the case did not break any new ground as a matter of legal principle. In the circumstances it is not sufficient for the application to have involved consideration of relatively new provisions or clarify their operation. In short, I am not satisfied that the case involved issues reasonably capable of the description 'novel of much general importance and some difficulty'" (at [12]).
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.
The applicant's other arguments for departure from the usual costs rule 94 Apart from the public interest, the applicant put two further arguments for departure from the usual costs rule. 95 The first further argument was that the applicant claims it was partially successful in the proceedings and therefore should not have to pay the respondents' costs in relation to the claim in respect of which it was successful. The applicant had claimed that EL6505 purported to be a grant of an exploration licence but essential preliminaries to the grant of an exploration licence under Pt 3 of the Mining Act were not complied with. However, the Minister and CMA did not contend that EL6505 was the grant of an exploration licence under Pt 3. Rather, they contended that it was the product of a transfer of part of A216 under Pt 7 of the Mining Act and the validity of EL6505 should stand or fall on that basis. I held there was no utility in answering the applicant's claim that EL6505 was granted in breach of Pt 3 when Pt 3 was not contended to be the source of power sustaining EL6505. 96 I reject the applicant's submission that this meant that the applicant was successful on this claim. The applicant's claim was doomed from the start because the Minister and CMA never contended that EL6505 was a grant under Pt 3. It would have been an exercise in futility for the Court to have determined the issue of compliance with conditions governing the exercising of a statutory power that was not, and was not purported to be, exercised. The realisation at the hearing of the lack of utility in determining the claim did not mean that the claim was successful. 97 The applicant's second further argument for departure from the usual costs rule was that the applicant should not be held to pay the costs of two contradictors who put the same arguments in defence of EL6505. The applicant submits that there was a commonality of interest between the two respondents. Although the Minister was a necessary party, it was unnecessary for both respondents to take an active role in the proceedings having regard to the nature of the issues which were essentially matters of statutory construction. The applicant relies on the dicta of Gaudron and Gummow JJ in Oshlack v Richmond River Council at [12] and [46]; Cowdroy J in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268 at [35] and Basten JA in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504; (2008) 161 LGERA 170 at [228] and [229]. 98 The respondents contend to the contrary and submit this is not a case where only one set of costs should be allowed. 99 CMA submits that both respondents played an active role in the case and it was proper for them to do so. As far as CMA was concerned, the applicant sought orders that jeopardised an asset of considerable value to CMA. CMA had paid $100 million for EL6505 and to date has spent many more millions, and years of its time, engaged in exploration activities pursuant to EL6505. CMA submits it was entitled to participate fully to protect its interests by defending the validity of the exploration licence and should be compensated by an order for costs. 100 The Minister submits he had a legitimate interest in defending the exercise of his power to renew A216 and to transfer part of A216, as well as defending the validity of A216. It would not have been proper for the Minister to have left to CMA the defence of his exercise of statutory powers and of the validity of the exploration licence he had granted for considerable value to CMA. 101 The Minister submits that there was no unjustified duplication by the respondents at the hearing. The evidence relied on by the respondents went to different issues. To the extent both respondents adopted a similar approach to the applicable legal principles, the respondents avoided unnecessary repetition in their submissions, particularly in the oral submissions. 102 I find that the applicant has not shown why there should be a departure from the usual costs rule so as to relieve the applicant from paying the costs of both of the respondents against whom the applicant brought the proceedings. The onus is on the applicant to show that a different approach should be adopted on the facts of the case: R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166; (2008) 1 WLR 878; [2008] JPL 1145 at [29]. 103 The applicant properly joined both respondents, the Minister as the person whose exercise of statutory powers to renew and partially transfer the exploration licence was challenged, and CMA as the beneficiary of the exploration licence EL6505 with a peculiar interest in the outcome of the proceedings. The Minister's participation in the hearing was properly limited to the powers and procedures of the Minister under the Mining Act: see The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 36. The involvement of CMA was not so limited and extended to matters of discretion if the Court had found a breach of the statutory powers and procedures. The Minister and CMA presented their cases in a manner which minimised overlap, such as in oral submissions presenting different aspects of the defence to the applicant's claims. Such considerations were influential for Lloyd J in Botany Bay City Council v Minister for Planning (No 2) [2006] NSWLEC 718 at [14], [15] in declining to limit costs to be ordered to only one set of costs. I find them also to be influential. 104 I do not consider that the Minister's active participation in the proceedings was inappropriate or amounted to disentitling conduct: see like conclusions by Jagot J in Kennedy v Director-General of the Department of Environment and Conservation (No 2) [2007] NSWLEC 271 at [21] and Corowa v Geographe Point Pty Ltd (No 2) [2007] NSWLEC 272 at [14]. See also Bolton Metropolitan District Council v Secretary of the State for the Environment [1995] 1 WLR 1176 at 1178, 1179. 105 I also find CMA's active participation in the proceedings to be reasonable in the circumstances. CMA did not need to leave it to the Minister to represent CMA's cause. As Burchett J said in Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGERA 381 at 384:
"A respondent with a real interest in the issue an applicant chooses to contest is not disentitled from incurring the expense of appearing to defend the matter because someone else also appears." 106 In Bolton Metropolitan District Council v Secretary of State for the Environment at 1179, the House of Lords considered that the developers should receive their costs, one reason being "the scale of the development and the importance of the outcome for the developers were both of exceptional size and weight". In this case too, CMA had a very substantial investment at stake: it had paid $100 million for the exploration licence and had expended significant money and time in carrying out exploration activities in reliance upon the licence.
Conclusion and order 107 For these reasons, I consider the applicant should pay the costs of each of the respondents. 108 The formal order of the Court is that the applicant is to pay each respondent's costs of the proceedings, including the costs of the application for costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Caroona Coal Action Group Inc
Coal Mines Australia Pty Limited and Minister for Mineral Resources
CITATION : Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59
Alliance to Save the Hinchinbrook Inc v Cook [2005] QSC 355 Anderson on behalf of Numbahjing Clan within Bundjalung Nation v Director General of the Department of Environment and Climate Change [2008] NSWLEC 299 Anderson v Jali Local Aboriginal Land Council (No 2) [2009] NSWLEC 222 Anderson on behalf of Numbahjing Clan within Bundjalung Nation v NSW Minister for Planning & Ors (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132 Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGERA 381 Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176 Botany Bay City Council v Minister for Planning (No 2) [2006] NSWLEC 718 Bridgetown/Greenbushes Friend of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGERA 436 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Campbell (on behalf of Lord Howe Island Preservation Movement) v Minister for Environment and Planning, (NSWLEC, Cripps CJ, 24 June 1988, unreported) Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 1) [2009] NSWLEC 165; (2009) 170 LGERA 22 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1 Corowa v Geographe Point Pty Ltd (No 2) [2007] NSWLEC 272 Darlinghurst Residents' Association v Elarosa Investment (No 3) (1992) 75 LGRA 214 Drake-Brockman v Minister for Planning (No 2) [2007] NSWLEC 777 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 Friends of Hay Street Inc v Hastings Council (1995) 87 LGERA 44 Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2008] NSWLEC 213 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 Kennedy v Director-General of Department of Environment and Conservation (No 2) [2007] NSWLEC 271 Kent v Cavanagh (1973) 1 ACTR 43 CASES CITED: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268 Ku-ring-gai Council v Minister for Planning (No 2) [2008] NSWLEC 276 Lansen v Minister for Environment and Heritage (No 3) [2008] FCA 1367; (2008) 162 LGERA 258 Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (No 2) (1992) 75 LGRA 210 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504; (2008) 161 LGERA 170 Minister for Planning v Walker (No 2) [2008] NSWCA 334 Nettheim v Minister for Planning and Local Government (No 2), (NSWLEC, Cripps CJ, 28 September 1988, unreported) New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Oshlack v Richmond River Council (1994) 82 LGERA 236 Plumb v Penrith City Council [2003] NSWLEC 161; (2003) 126 LGERA 109 R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 1 WLR 878; [2008] JPL 1145 R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600; [2005] 4 All ER 1 R (on the application of Friends of the Earth Ltd) v Secretary of the State for Environment Food and Rural Affairs [2001] EWCA Civ 1950 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 Rundle v Tweed Shire Council (No 2) (1989) 69 LGRA 21 Save the Ridge Inc v Commonwealth of Australia [2006] FCAFC 51; (2006) 230 ALR 411 Sharples v Minister for Local Government (No 2) [2009] NSWLEC 62 Sharples v Minister for Local Government [2010] NSWCA 36 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 72 ALJR 1008; 101 LGERA 114 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, (2006) 67 NSWLR 256; (2006) 146 LGERA 10 Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Trustees for time being of the Biowatch Trust v Registrar, Genetic Resources & Ors [2009] ZACC 14 Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19; (2008) 157 LGERA 413
Nature of application and conclusion 1 HIS HONOUR: The applicant, Caroona Coal Action Group Inc, brought proceedings challenging the validity of certain mining authorities issued by the Minister for Mineral Resources ("Minister") to Coal Mines Australia Pty Limited ("CMA"). I held that the applicant's challenge was unsuccessful and should be dismissed: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1. I reserved the question of costs of the proceedings: at [124], [125]. 2 CMA and the Minister, having been successful in the proceedings, applied for an order that the applicant pay their costs. They submitted that the usual costs rule that costs follow the event should apply. The applicant opposes that order. Instead, the applicant submitted that each party should pay their own costs or, alternatively, the applicant should pay only one set of costs, of either the Minister or CMA but not both. The primary ground on which the applicant opposes any order for costs is that the proceedings were brought in the public interest, although the applicant did raise two further arguments. 3 I do not consider that, in the circumstances of this case, the applicant has shown sufficient reason to justify departure from the usual costs rule that costs follow the event. The applicant should pay the costs of the successful respondents, both the Minister and CMA.
The need for a principled exercise of the costs discretion 8 Rule 42.1 of the UCPR provides the principle that the proper exercise of the costs discretion will normally require an order that the costs of a successful party or parties be paid by the unsuccessful party. This is the usual costs rule. 9 However, a court may depart from the usual costs rule if it is satisfied that "some other order should be made". For example, a court may, in appropriate circumstances, refrain from ordering costs in favour of a successful party. The circumstances in which a court may depart from the usual costs rule are varied, but there must be something out of the ordinary in the case to justify the departure: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 at [18]. One circumstance canvassed in the authorities that may justify departure from the usual costs rule is that the proceedings have been brought in the public interest: see Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [49], [134], [136], [143]. This circumstance is relied upon by the applicant in these proceedings. 10 Any departure from the usual costs rule on the basis of some circumstance, including the public interest, needs to be principled. As McHugh J said in Oshlack v Richmond River Council at [72]: "If discretions concerning costs are to be exercised consistently and rationally, it is essential that the courts formulate principles and guidelines that can be applied with precision in most cases. If characterisation as "public interest litigation" is a factor to be considered when making costs orders, courts must be able to define the term with precision. They must eschew any notion of the 'I know it when I see it' type of reasoning [ Jacobellis v Ohio (1964) 378 US 184 at 197 per Stewart J concurring]. If courts are to retain the confidence of litigants and the wider community, they must continually reaffirm and demonstrate that their decisions are based on objective reasons that are articulated and can be defended. As Professor Paul Gewirtz has recently written ["On 'I Know It When I See It'", (1996) 105 Yale Law Journal 1023 at 1025]:
Judicial power involves coercion over other people, and that coercion must be justified and have a legitimate basis. The central justification for that coercion is that it is compelled, or at least constrained, by pre-existing legal texts and legal rules, and by legal reasoning set forth in a written opinion. From this perspective, the exercise of judicial power is not legitimate if it is based on a judge's personal preferences rather than law that precedes the case, on subjective will rather than objective analysis, on emotion rather than reasoned reflection." 11 McHugh J was in dissent in that case but his observations on the need for a principled approach to the exercise of the costs discretion were not in contest. 12 Other courts have issued similar cautions. The Full Court of the Supreme Court of Western Australia warned that "great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in a unprincipled, haphazard and unjudicial manner": Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 at [11]. This warning has been cited with approval by subsequent courts including in Save the Ridge Inc v Commonwealth of Australia [2006] FCAFC 51; (2006) 230 ALR 411 at [6] and Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [48]. A three step approach to costs in public interest litigation 13 What principles or guidelines have courts formulated for exercising the costs discretion in public interest litigation which has been unsuccessful? A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there "something more" than the mere characterisation of the litigation as being brought in the public interest?; and thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speak against departure from the usual costs rule? 14 This three step approach enables a principled exercise of the costs discretion. I will elaborate on each of the steps but first I will provide an overview of the process and its logic. 15 The first step sets the threshold. If the litigation cannot be characterised as being brought in the public interest, then obviously the public interest cannot be a circumstance justifying departure from the usual costs rule and any justification will need to be found in some other circumstance. If, however, the litigation can be characterised as being brought in the public interest, it becomes necessary to examine more closely the nature, extent and other features of the public interest involved in the particular litigation to ascertain whether they provide justification in the circumstances of the case for departure from the usual costs rule.
Characterisation as public interest litigation 21 Courts have found the task of characterising litigation as being brought in the public interest to be difficult. One reason for the difficulty is that the public interest is a "nebulous concept": Oshlack v Richmond River Council (HCA) at [30], [136]; Anderson on behalf of Numbahjing Clan within Bundjalung Nation v NSW Minister for Planning & Ors (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132 at [13]; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [6], [7]. It is also a "very broad one": Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [14]. The public interest is a multi-faceted concept: there may be "many public interests": Ruddock v Vadarlis (No 2) at [19]. 22 In an environmental context, for example, there is a public interest in environmental protection but there is also a public interest in social development and in economic development: see Bridgetown/Greenbushes Friend of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGERA 436 at 438. Indeed, environmental protection, social development and economic development are the three components of sustainable development. They have been described as the "interdependent and mutually reinforcing pillars of sustainable development": see the Plan of Implementation of the World Summit on Sustainable Development held in Johannesburg, 2002 at [2] quoted in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [112]. 23 The very concept of sustainable development involves the integration of environmental, social and economic considerations in the decision making process. In Ruddock v Vadarlis (No 2), Black CJ and French J noted that "[i]n contentious areas of public policy it may be said that there are many 'public interests' and that it is the elected government which must seek to achieve a balance between those competing interests" (at [19]). 24 In environmental cases, this may mean that different aspects of the public interest could be represented by the parties to the litigation: "on the one side an individual or representative body seeking to uphold one perception of the public interest and the requirements of an environmental law; on the other side, a local government authority seeking to uphold another": Oshlack v Richmond River Council at [117] per Kirby J. To these parties may be added a third party, the developer, seeking to uphold another perception of the public interest, economic development. 25 Basten JA observed in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [7] that, on one view, in conformity with the purpose of the open standing provisions found in many environmental statutes, such as s 123 of the Environmental Planning and Assessment Act 1979, any attempt to ensure that the statute is not breached with impunity will constitute a public interest of a sufficient kind: see also Oshlack v Richmond River Council at [114] per Kirby J. 26 This multifaceted nature of the public interest means that use of the generic category of "public interest" as a criterion for grounding justification for departure from the usual costs order rule is unlikely to be helpful. If potentially all parties in environmental matters could be seen to be upholding one or other perception of the public interest, what is the justification when exercising the costs discretion for giving preferential treatment to one aspect of the public interest, namely, ensuring environmental protection, rather than other aspects of the public interest such as ensuring social development or economic development? 27 The answer, I suggest, is to be found in the need for courts to ensure access to justice in environmental matters. Access to justice includes citizens having access to the courts to remedy or restrain breaches of public law, including environmental law: see Oshlack v Richmond River Council (1994) 82 LGERA 236 at 238 per Stein J; Anderson v Minister for Planning (No 2) at [19] - [20]; Principle 10 of the Declaration of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 April 1992 and Article 9(4) of the UNECE Convention on Access to Information, Public Participation in Decision-making and Justice in Environmental Matters adopted in Aarhus on 25 June 1998 ("Aarhus Convention"). 28 The cost of litigation, however, is a practical barrier to access to justice. This is true for all types of litigation and not just some kinds: Lord Woolf, Access to Justice: Final Report, HMSO, London, July 1996, p 78; J J Spigelman, "Access to justice and access to lawyers" (2007) 14 A J Admin L 158 at 163 and M Gleeson, "The purpose of litigation" (2009) 83 ALJ 601 at 608. However, the cost of litigation in environmental matters has received particular attention.
29 The problem of costs is not restricted to the costs the applicant has to incur for its own case but extends to the costs of the other parties if the applicant is unsuccessful in the litigation. Lord Justice Brooke has said: "'Affordability' of access to justice in an environmental law context always meant being able to afford, or to be protected against, the other side's claim if the case failed": "Environmental Justice: The Costs Barrier" (2006) 18 J Env L 341 at 355; 30 In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 1) [2009] NSWLEC 165; (2009) 170 LGERA 22 at [23], I referred to the extra-curial observation of Toohey J that the usual costs rule was a barrier to access to justice in environmental matters. The observation is worth repeating here: "There is little point in opening the doors to the courts if litigants cannot afford to come in. The general rule in litigation that 'costs follow the event' is in point. The fear, if unsuccessful, of having to pay the costs of the other side (often a government instrumentality or wealthy private corporation), with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of cases to court. In any event, it will be a factor that looms large in any consideration to initiate litigation": J Toohey and A D'Arcy, "Environmental Law - Its Place in the System" in R J Fowler (ed), Proceedings of the International Conference on Environmental Law. 14-18 June 1989, Sydney, Australia (organised by the National Environmental Law Association of Australia and the Law Association for Asia and the Pacific).
31 As noted, this observation has been cited with approval by courts in Australia and overseas: see Oshlack v Richmond River Shire Council at 238 per Stein J; Oshlack v Richmond River Council at [114] per Kirby J; R (On the Application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600; [2005] 4 All ER 1 at [31]. It has also been cited by judges in their extra-curial writings: see for example Justice P Salmon, "Access to Environmental Justice" (1998) 2 NZ J Envtl L 1 at 13 and Lord Justice Brooke, "Environmental Justice: The Costs Barrier" (2006) 18 J Env L 341 at 346. Others have made like comments: P Sands, "Access to Environmental Justice in the European Community: Principles, Practice and Proposals" (1994) 3(4) RECIEL 206 at 212-213; Sir Robert Carnwarth, "Environmental Litigation - A Way through the Maze?" (1999) 11 J Env L 1 at 9 and Kent v Cavanagh (1973) 1 ACTR 43 at 55 per Fox J 32 The Environmental Justice Project assessed the extent to which the civil and criminal law system in the United Kingdom satisfied the requirements of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The Report of the Environmental Justice Project in 2004 identified that "the current costs rules represent the single largest barrier to environmental justice" (at [68], p 39). One of the primary concerns was the application of the usual rule that costs follow the event (ie the loser pays the winner's costs): see further C Hatton, P Castle and M Day, "The environment and the law - does our legal system deliver access to justice? A preview" (2004) 6 Envtl L Rev 240 at 247 and N de Sadeleer, G Roller and M Dross, Access to Justice in Environmental Matters and the Role of NGOs, Europa Law Publishing, 2005, pp 152, 196, 200, 209. 33 A subsequent Working Group on Access to Environmental Justice, chaired by Mr Justice Sullivan, noted in its Report dated May 2008 that the general rule that the loser pays the winner's costs is one of the "obstacles to the achievement of access to environmental justice in England and Wales" (at [23], p 13) and "a significant deterrent even to the commencement of a challenge" (at [24], p 13). The Working Group concluded that "the key issue limiting access to environmental justice and inhibiting compliance with Article 9(4) of Aarhus [Convention] is that of costs and the potential exposure to costs" (at [25], p 15): Ensuring access to environmental justice in England and Wales, Report of the Working Group on Access to Environmental Justice, May 2008. 34 One consequence of costs acting as a barrier to access for justice for citizens seeking to enforce environmental law is that this aspect of the public interest risks being unrepresented or, at least, underrepresented, in the courts. 35 In contrast, costs typically do not operate to deter other aspects of the public interest, such as promotion of social development or economic development, from being represented in the courts. These aspects are upheld by other parties to litigation, such as the government and persons with private proprietary, business or financial interests, such as developers. Relative to applicants who seek to enforce public law to ensure environmental protection, costs usually are not as critical to these parties because of their greater access to financial resources and ability to pass on the costs to other persons (such as taxpayers or consumers of goods and services) or to spread the costs over a larger revenue and expenditure base and over time. 36 Hence, one justification for departure from the usual costs rule in litigation brought by citizens seeking to enforce public law to ensure environmental protection is to provide access to justice for these citizens and to ensure this aspect of the public interest is represented in the courts. This justification makes it reasonable for a court to examine the litigation concerned to ascertain whether it can be characterised as having been brought for the relevant, unrepresented aspect of the public interest that provides the justification for departure from the usual costs rule. It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reason of costs acting as a barrier to access to justice. 37 With this focus in mind, what considerations may be relevant to ascertain whether the litigation has been brought to uphold the relevant aspect of the public interest? 38 A review of the costs decisions reveals that courts have referred to a variety of considerations to determine whether litigation can properly be characterised as having been brought in the public interest. Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15] summarised five considerations:
39 These five considerations have been used to characterise the litigation in Anderson v NSW Minister for Planning (No 2) at [15]; Minister for Planning v Walker (No 2) [2008] NSWCA 334 at [6]-[9]; Sharples v Minister for Local Government (No 2) [2009] NSWLEC 62 at [5], [11]-[19]; affirmed in Sharples v Minister for Local Government [2010] NSWCA 36 at [115], [116] and [123]; and Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [25], [42] and implicitly at [11]. 40 Four points can be made about these considerations. First, the considerations focus on the aspect of the public interest of enforcing public law. This is explicit in considerations (c) and (d) and implicit in (e) and probably (b). The focus on this aspect of the public interest is consistent with the rationale for departure from the usual costs rule, to which I have earlier referred, of ensuring access to justice for citizens seeking to enforce public law, including environmental law. 41 Secondly, the considerations should not be seen or applied as a code for characterisation of litigation as being brought in the public interest. They are merely considerations which, if answered in a particular way, may indicate that the proceedings could be characterised as being brought in the public interest. Other considerations may also be relevant to be considered. 42 Thirdly, the considerations are relevant not only to the characterisation of litigation as having being brought in the public interest, which is the first of the three steps in the process of determining whether departure from the usual costs rule is justified; they are also relevant to the second and third steps of that process namely, whether there is something more than the mere characterisation of the litigation as being brought in the public interest and whether there are any countervailing factors that speak against departure from the usual costs rule. Lloyd J's summary was of the considerations referred to in the prior cases, including the Oshlack decisions, and these considerations addressed not only the issue of characterisation but also whether there was something more than that characterisation and any countervailing reasons. 43 Fourthly, it is not necessary in order to characterise litigation as being brought in the public interest to answer each of these considerations in a particular way. For example, in consideration (b), the fact that the public interest is confined to a small section of the community does not necessarily deny characterisation of the litigation as being brought in the public interest. As Jacobs J noted in Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 487, "the smallness of the section of the public may affect the quantity or weight of the public interest … [but] it does not affect the quality of that interest." 44 In consideration (d), the fact that the motivation of the litigant may not primarily be to uphold the public interest, but may involve some private interest, also does not necessarily deny characterisation of the litigation as being in the public interest. As Kirby J noted in Oshlack v Richmond River Council at [140], "[t]he issue is not the subjective motivation of the litigant but the public or private character of the litigation". 45 Similarly, in consideration (e), the existence of some private, pecuniary interest in the outcome of the litigation does not necessarily deny characterisation of the litigation as being in the public interest. As I noted in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; (2009) 170 LGERA 22 at [27], "litigation can still properly be characterised as being in the public interest, notwithstanding it also may advance private interests": see Nettheim v Minister for Planning and Local Government (No 2), (NSWLEC, Cripps CJ, 28 September 1988, unreported) at 3-5; Darlinghurst Residents' Association v Elarosa Investment (No 3) (1992) 75 LGRA 214 at 216; Alliance to Save the Hinchinbrook Inc v Cook [2005] QSC 355 at [11]. 46 Hence, it is not necessary to answer these considerations in a particular way in order for litigation to be characterised as being in the public interest and, conversely, it is not necessary, if the considerations are answered in a different way, to characterise the litigation as not being in the public interest. Nevertheless, the answers to these considerations may be relevant in the second and third steps in the process of determining whether departure from the usual costs rule is justified.
58 These circumstances were all related in some way to the public interest involved in the litigation. They gave colour and content to the public interest character of the litigation. They provided a principled basis for sorting the types of litigation that might fall under the umbrella of public interest litigation, ranging from matters which could barely be characterised as being brought in the public interest to matters which involve issues of great public importance or subject matter of great public value. Stein J found the matter in that case to be in the latter category. 59 In a recent case, Anderson v Minister for Planning (No 2), Biscoe J also recognised that the "something more" might relate to the public interest involved in the litigation: "the nature of the public interest, of itself, may be of such moment or magnitude as to be sufficient to depart from the usual order as to costs" (at [10], see also [11]). Biscoe J gives as one example (at [10]) of "a matter of very general importance", litigation to uphold the liberty of the subject in time of war (in Liversidge v Anderson [1942] AC 206 at 283) and as another example (at [11]) litigation "brought to stop or limit the development of one of the last habitats of an endangered species." The public interest consideration in such cases is of such moment or magnitude as to ground the justification for departure from the usual costs rule. 60 With this background to the requirement of "something more", what circumstances or factors have the courts identified that, when coupled with the characterisation of the litigation as being brought in the public interest, justify departure from the usual costs rule? The circumstances identified fall into at least five categories: (a) the litigation raises one or more novel issues of general importance: see Arnold ( on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 622, 635; New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466 at 485; Oshlack v Richmond River Shire Council (Stein J) at 246; Oshlack v Richmond River Council (HCA) at [49], [144]; Ruddock v Vadarlis (No 2) at [17], [28], [29]; Plumb v Penrith City Council [2003] NSWLEC 161; (2003) 126 LGERA 109 at [16], [17]; Engadine Area Transport Action Group v Sutherland Shire Council (No 2) at [20], [21]; Save the Ridge Inc v Commonwealth of Australia [2006] FCAFC 51; (2006) 230 ALR 411 at [11]-[12]; Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 at [73]; Lansen v Minister for Environment and Heritage (No 3) [2008] FCA 1367; (2008) 162 LGERA 258 at [34]; Anderson v Minister for Planning (No 2) at [9] and [10]; Minister for Planning v Walker (No 2) at [9]; Sharples v Minister for Local Government (No 2) at [21], [23] upheld in Sharples v Minister for Local Government [2010] NSWCA 36 at [120], [123], [124]; and Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 at [130];
(b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law: Oshlack v Richmond River Council (HCA) at [136]; Friends of Hay Street Inc v Hastings Council (1995) 87 LGERA 44 at 47; Plumb v Penrith City Council at [16], [17]; Lansen v Minister for Environment and Heritage (No 3) at [34]; and Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19; (2008) 157 LGERA 413 at [7]-[9]. See also R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600; [2005] 4 All ER 1 at [70] ("there is a public interest in the elucidation of public law by the higher courts") and R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 1 WLR 878; [2008] JPL 1145 at [15].
Countervailing considerations 61 Even where courts have found or assumed that the litigation could be characterised as public interest litigation, they may decline to depart from the usual costs rule because of countervailing considerations. Some of these can be seen to be the converse of the public interest considerations earlier referred to, but others are independent. Countervailing considerations identified in the cases include: (a) the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation: Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2008] NSWLEC 213 at [6], [7]; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 at [27]; Anderson v Minister for Planning (No 2) at [16]; Ku-ring-gai Council v Minister for Planning (No 2) [2008] NSWLEC 276 at [32]; Anderson v Jali Local Aboriginal Land Council (No 2) [2009] NSWLEC 222 at [5];
(d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications: Save the Ridge Inc v Commonwealth of Australia at [13]; Drake-Brockman v Minister for Planning (No 2) [2007) NSWLEC 777 at [12]; Kennedy v Director-General of Department of Environment and Conservation (No 2) [2007] NSWLEC 271 at [23], [24]; Corowa v Geographe Point Pty Ltd (No 2) [2007] NSWLEC 272 at [11]; Anderson on behalf of Numbahjing Clan within Bundjalung Nation v Director General of the Department of Environment and Climate Change [2008] NSWLEC 299 at [14]; Anderson v Minister for Planning (No 2) at [30]; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [11], [54]; Ku-ring-gai Council v Minister for Planning (No 2) at [32]; and Sharples v Minister for Local Government [2010] NSWCA 36 at [123].
(f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation: see Trustees for time being of the Biowatch Trust v Registrar, Genetic Resources & Ors [2009] ZACC 14 at [18], [20], [24].
[2008] FCA 1367
(2008) 163 LGERA 132
(1987) 73 ALR 607
(1988) 76 LGERA 381
(2008) 165 FCR 211
(1997) 93 LGERA 436
(2009) 170 LGERA 22
(2004) 136 LGERA 365
(1995) 87 LGERA 44
(2006) 143 LGERA 268
(2008) 162 LGERA 258
(2008) 72 NSWLR 504
(2008) 161 LGERA 170
(1998) 193 CLR 72
(1994) 82 LGERA 236
(2003) 126 LGERA 109
(2001) 115 FCR 229
(2006) 230 ALR 411
(1975) 132 CLR 473
(1998) 72 ALJR 1008
(2006) 67 NSWLR 256
(2006) 146 LGERA 10
(2009) 167 LGERA 432
(1980) 144 CLR 13
(2008) 157 LGERA 413
(1992) 75 LGERA 214
[1998] HCA 11