Environment Council of Central Queensland Inc v Minister for the Environment and Water

1. The Applicant in proceeding VID 400 of 2023 and VID 401 of 2023 is to pay: (a) one half of the costs of the First Respondent to be taxed; and (b) the costs of the Second Respondent to be taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J: 1 For the reasons published on 11 October 2023, I dismissed each proceeding and made consequential orders for the determination of any application for costs on the papers: Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2023] FCA 1208 (primary reasons). In each matter, the Minister and the second respondent proponent seek costs and the applicant resists. 2 The Minister seeks a partial costs order: one half of her costs on a party and party basis in each proceeding. The proponents seek costs in each matter as between party and party. The applicant submits that the circumstance of the particular case justifies departure from the general rule that costs follow the event. 3 The Minister acknowledges that sometimes public interest litigation of itself provides a basis to depart from the usual order: Oshlack v Richmond River Council (1998) 193 CLR 72. A relevant example is Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20; 286 FCR 160, where the Court (Griffiths, Moshinsky and SC Derrington JJ) determined that each party should pay their own costs, following determination of a separate question concerning the Regional Forest Agreement provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). At [16], the Court identified four considerations favouring departure from the general rule: the separate question raised "a difficult question of statutory construction"; the applicant's construction was "plainly arguable"; the case "raised issues of broader public importance" and despite the fact that applicants in public interest litigation have no immunity from costs, that consideration was outweighed by the others. 4 In support of her costs application, the Minister submits that the proceeding involved a multiplicity of grounds with a substantial volume of evidence "much of which was extraneous to the real issues in dispute" and that she was entirely successful in resisting each application based on her interpretation of the statutory scheme, which she applied in each decision the subject of challenge. Reflecting her particular role, her case was confined to the question of statutory construction and the factual background of her decision-making. The Minister acknowledges some overlap with the submissions of the proponents which explains why she only seeks a proportion of her costs. 5 The proponents emphasise that they were necessary parties, with a substantial legal interest in the outcome. Whilst in some cases it is not appropriate to allow for two sets of costs where there is no conflict of interest between respondents, in this case, the proponents' interests and those of the Minister may not have elided on the construction question and on that basis, it was "reasonable to apprehend a possible conflict" of interest. It is further submitted that the Minister and the proponents each acted reasonably in maintaining separate representation because the Minister is the statutory decision-maker. The proponents also deny that the cases raised novel issues of general importance, emphasising that the applicant's arguments, at least in relation to ground 1, did not engage with prior decisions of this Court. 6 The applicant relies on six considerations as justifying departure from the usual rule. First, each proceeding was commenced to ensure compliance with public environmental law obligations, which does not of itself justify departure from the usual rule but nonetheless is a relevant factor to consider. Second, each proceeding was commenced to clarify the proper interpretation of s 78 of the EPBC Act and whether the Minister was bound to consider the anthropogenic effects of climate change in a particular way. Third, the construction questions were plainly arguable. Fourth, each proceeding was brought in the public interest and raised a matter of public importance. Fifth, the applicant had no financial interest in the outcome. Sixth, the interests of the Minister cannot be distinguished from the public interest, and she ought to have "played a more limited role" where the proponents were contradictors: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman) at 35-36 (commonly known as the Hardiman principle). 7 I accept that the applicant commenced each proceeding in the public interest and beyond satisfaction of achieving the outcome that the applicant argued for, did not have a financial or proprietary interest that it sought to vindicate. I also accept that each application raised an important question of statutory construction, with wide-ranging implications, the central focus of which was ground 1. However, the arguments in support of the construction of likely at s 78(1)(a) of the EPBC Act were contrary to guiding authority, as I explained in my primary reasons at [53]-[59], and the central "future universe" contention, as requiring the Minister to reason prescriptively by identifying possible futures and future worlds "starting with the input assumption that the action will be taken" was inconsistent with the broad discretion to assess the impacts of a particular proposed action, as I explained in my primary reasons at [70]-[81]. It was open to the Minister to adopt a different, and perhaps broader, reasoning pathway but the fundamental difficulty is that the applicant's arguments failed to address why the statutory scheme compelled the Minister to reason in a particular way. Nor did the applicant's arguments address why single judge decisions of this Court, to the effect that the EPBC Act does not prescribe the frame of reference for the significant impact assessment, were wrong: primary reasons at [79]-[80]. There was considerable overlap with ground 1 in the applicant's arguments in support of the balance grounds, save for the precautionary principle argument (ground 4) and irrationality (grounds 6 and 10). The precautionary principle argument could not be reconciled with a recent decision of the Full Court (primary reasons at [99]-[117]) and the irrationality contentions simply failed to meet the high bar for that finding (primary reasons at [118]-[148]). That said, most of the argument and material relied on concerned the construction question agitated at ground 1 and related arguments about what is a "substantial" impact (ground 7). 8 The applicant emphasised the very considerable volume of scientific evidence that it had placed before the Minister, and which it sought to supplement by expert evidence upon the review application. As correctly submitted by the Minister, much of that evidence "was extraneous to the real issues in dispute" in that the Minister did not dispute the science of climate change, accepting that anthropogenic greenhouse gas emissions are the major cause of adverse climate change and an existential threat to a large number of Matters of National Environmental Significance. The applicant's heavy reliance on this material considerably added to the volume of material to be considered, the time spent and the ultimate costs of resolving the construction question. 9 Further, as I explained in the introductory part of my primary reasons at [5]-[7], the applicant's preferred construction is a matter for Parliament. 10 I do not consider the Hardiman principle to be applicable. It will be recalled that the Australian Broadcasting Tribunal in Hardiman contested the prosecutors' application for mandamus and prohibition, which the court characterised as an "unusual course", noting that ordinarily an independent Tribunal will submit to such order as the court may make: at [35]. In these proceedings, the Minister is the primary decision-maker: she does not function as an independent reviewer. Where a Minister's decision is challenged on judicial review, the ordinary course is that the Minister is represented by counsel and takes an active part: Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [76] (Weinberg, Jacobson and Lander JJ). Even though each proponent in these applications acted as a competent contradictor, the Minister had a proper interest in the determination of the question of construction of her statutory powers. The discount of 50% of her usual party and party costs properly reflects that interest. 11 For these reasons, I have concluded that there is no principled basis to depart from the general rule that costs follow the event. I order as follows: