2. On 3 April 1995 the Resource Management and Planning Tribunal refused applications made pursuant to the Land Use Planning and Approvals Act 1993 which had sought orders in respect of an alleged contravention of the Municipality of Circular Head Interim Order No 1 of 1987 and the Municipality of Waratah Interim Order No 1 of 1986. The effect of a granting of the application would have been a cessation of the road works, at least until new regulatory provisions were proclaimed. The applicants were the Wilderness Society Inc, an incorporated association committed to the protection of the environment and Dr Gerard Bates, a Member of the House of Assembly. The Society was represented by Mr Michael Stokes, a Senior Lecturer in Law at the University of Tasmania, whilst Dr Bates, a former lecturer in law, appeared in person. Neither party exercised the right of appeal afforded by the Resource Management and Planning Appeal Tribunal Act 1993, s25 in part because of the risk of a costs order being made in the event of an unsuccessful outcome of any such appeal. The respondent was among a number of persons who were "briefed" by Dr Bates, following the publication of the decision by the Tribunal. Mr Stokes, in due course, advised interested students in the Faculty of Law of the ratio of the decision, its implications and his own view as to its correctness. A number of students took the decision and the general legal issues associated with it as a special study assignment. Two of them, Messrs Tom Baxter and Andrew Collins, believed, as a result of their study and research, that the decision could be successfully challenged. Some time in October a decision was taken that Mr Baxter would be the plaintiff to an action seeking declarations in terms similar to those sought before the Tribunal. The students had held informal discussions with representatives of the Wilderness Society, but were advised that the Society did not wish to be associated with the intended action. Concurrent with these developments Mr Michael Foley, a Member of the House of Assembly and Parliamentary colleague of Dr Bates, attempted to obtain financial support from interstate

sources to help finance a court challenge, but was unsuccessful in his attempt. At some stage in October the varying intentions and activities came together in an understanding that Mr Baxter, not having assets which could be put at risk, would be the party to the action. I accept that there was a convergence of plans rather than a consistent strategy organised to ensure that an impecunious party took the responsibility for effectively prosecuting the appeal on behalf of the Wilderness Society, the Society having foregone its right. A decision having been made, Dr Bates and Mr Foley made a public statement recorded for television news on 20 November 1995 in which was stated words to the effect that an individual would be taking the case because of the potential costs associated with the action which could not be met by organisations involved in the issue. It was an incautious exercise. It is one thing for a person engaged in public interest litigation to carefully consider the criteria of who might be a suitable party. It is another to publicly state that a party has been chosen because a costs order would be to no avail. Publicity and political action are proper strategic and tactical adjuncts to a court process but blatancy can be destructive of credibility and the proper use of litigation. The public statements led, in part, to the making of the present application. Following the public statement Mr Baxter reconsidered his position. As a law student he was concerned about the consequence to his career which might flow from an order in bankruptcy. He decided that he was not prepared to commence the action. In the course of discussions following that decision the respondent offered to maintain the action.

3. The respondent is a student enrolled in a combined Arts/Law Degree course. He has particular interest in environmental law. In February 1995 he participated, with others, in political activity designed to prevent a construction of the road works. He made a financial contribution to an unincorporated association calling itself the Tarkine National Coalition, whose purpose is to ensure a proper development and maintenance of the area through which the road is to pass. His political activity and financial donation entitles him to membership of the group. He has recently become a financial member of the Wilderness Society Inc. He became aware of the potential for a successful legal challenge through his contact with Mr Baxter and Mr Collins. The writ was filed on 22 November 1995. Dr Bates had made arrangements for the payment to the respondent's solicitors for some of the disbursements associated with the action. The respondent has made no payment for costs to the solicitors, nor did he attend the meeting at which instructions were given to commence the action. The respondent is impecunious and unable to meet either his own costs of the action, or those of the applicant, if he is unsuccessful. Because of the operation of the Rules of the Supreme Court, O80, r22 the applicant has yet to deliver its defence, but the request for further and better particulars clearly shows that the defence will include a plea that the respondent has no standing to bring the action. For the purpose of this application I will accept that the respondent has standing. I accept that the respondent is genuinely committed to the attempt to prevent the further construction of the road works.

4. The applicant advances a two fold rationale in support of its application. The first is that the respondent is not a genuine party. It is said that he comes to court merely as the representative of others, those being either the Wilderness Society or the political party to which Dr Bates and Mr Foley belong. Given that neither the Society nor Dr Bates pursued their respective rights of appeal the applicant regards this action as an attempt to avoid the financial implications of an unsuccessful appeal. The inter-connected rationale is that he is put forward solely because he is impecunious and the state should not be expected to be obliged to meet its costs of an action irrespective of its outcome. To require it to do so would be to encourage a myriad of unmeritorious claims. The applicant, quite fairly, concedes that the respondent has an arguable case and the detailed reasons published by the Tribunal support a view that the legal process is at least subject to review. But the respondent contends that the conscious decision of the applicant not to seek injunctive relief (with the attendant risks associated with an undertaking as to damages) should not enable the respondent to avoid all responsibility for the maintenance of the action.

5. If I believed that the respondent had brought the action solely at the behest of others and was no more than a "person of straw" designed to further the foregone appeal on behalf of the Society, or the interests of a political party, I would be inclined to make the requested order (McCauley and Anor v McCauley and Ors (1895) 21 VR 224). But I am not so persuaded. I accept that the Wilderness Society Inc has abandoned the legal process as a vehicle of its intended objective and that the activities of Dr Bates and Mr Foley were co-incidental to, and not causative of, the conduct of the law students. The network of persons sharing similar values and beliefs resulted in a convergence of interest. The respondent had offered to become the party to the action before Mr Baxter withdrew and his subsequent involvement was a result of a further suggestion by Mr Collins. For the purpose of this application he is to be regarded as a party in his own right, or at least as a representative of a number of students with a legitimate interest in the validity of the laws of our society.

6. The Rules of the Supreme Court O80, r18 provides for a wide range of circumstances in which a security can be made and its application has been variously considered by this Court (Irene Lilian Hunt, Suzanne Maree Johnstone, Sally Ruth Robinson and Pauline Mary Bailey v Gerald Ralph Farnell, Peter Gerald Farnell and Perry Michael Farnell B26/1992 (unreported, available on SCALE), Goliath Portland Cement v McNally A62/1993 (unreported, available on SCALE)) and the exercise of discretion should not be made in favour of making an order unless compelling reasons are shown to exist. The following matters are relevant to the exercise of discretion:

1 Whether the plaintiff's claim is made bona fide and has

reasonable prospects of success (Sydmar v Statewide

Developments Pty Ltd (1987) 11 ACLR 616).

2 Whether the defendant has caused or contributed to the

plaintiff's situation (Sydmar v Statewide Developments Pty

Ltd (supra)).

3 Whether the plaintiff's proceedings are merely a defence

against "self-help" measures taken by the defendant

(Interwest Ltd (receivers and managers appointed) and Ors v

Tricontinental Corporation and Anor (1991) 9 ACLC 1218).

4 Whether the making of the order would stultify the

plaintiff's ability to pursue the proceedings (Bell Wholesale

Co Pty Ltd v Gates Export Corporation and Ors (No 2) (1984) 8

ACLC 588).

5 The extent to which it is reasonable to expect others who

would gain benefit by a successful outcome (creditors,

shareholders, etc but including interested citizens or

organisations in cases involving pubic interest) to make

funds available to satisfy any order for security (National

Bank of New Zealand Ltd v Donald Export Trading Ltd (1980) 1

NZLR 97).

6 The stage of proceedings at the time of the making of the

application (Smail v Burton Re Insurance Associates Pty Ltd

(In Liquidation) [1975] VicRp 76; (1975) VR 776).

7 Whether the plaintiff is a true plaintiff (Heller Factors

Pty Ltd v John Arnold's Surfs Shop Pty Ltd (in liq) and Anor

(1979) 4 ACLR 492.

8 The nature and effect of any cross-action.

9 Where a company is in liquidation, whether the

proceedings, if successful, benefit the creditors (Spiel v

Commodity Brokers Australia Pty Ltd [1984] FCA 65; (1983) 8 ACLR 818).

10 Whether the plaintiff seeks to enforce a public right or

obligation in the nature of public standards (Jet Corporation

of Australia Pty Ltd v Petres Pty Ltd [1983] FCA 240; (1983) 50 ALR 722).

11 Where a solvent creditor is making the claim on behalf of

an insolvent plaintiff (Sent v Jet Corporation of Australia

Pty Ltd [1984] FCA 178; (1984) 8 ACLR 979).

7. The respondent is entitled to a favourable exercise in relation to propositions 1, 4, 7 and 10, whilst the applicant should be regarded as receiving the benefit of propositions 5 and 6. I am satisfied that the application has been brought for a proper purpose and was not designed as a measure to defeat the respondent's application for an early trial of the cause of action. The decision taken by the applicant was doubtless influenced by the public statements made on 20 November 1995 and by the convergence of interests. The evidence adduced by both parties, has, however, persuaded me that the applicant's concerns are less significant than would otherwise appear to be warranted. The balance is even, but the existence of public interest litigation is the factor which persuades me to exercise the discretion in favour of the respondent.

8. The respondent seeks to challenge the validity of subordinate legislation enacted by the Executive. Courts should be reluctant to inhibit the rights of citizens to challenge the conduct of the Executive by the use of security orders or other procedural mechanisms. There can be little doubt that these proceedings are in the nature of public interest litigation (Rundle v Tweed Heads (1989) 69 LGRA 21, Darlinghurst Residents Association and Elarosa (1992) 75 LGRA 214). The nature of the litigation is a factor to be considered in a decision to award costs at the conclusion of proceedings (Oshlack v Richmond River Council (1994) 82 LGRA 222). In some cases circumstances justify a departure from the ordinary rule that costs follow the event so that each party is required to pay its own costs (Friends of Hay Street Inc v Hastings Council and Lesmont Pty Ltd (1995) LGRA 44). Although as Birchet J said in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171:

"If a body is set up to pursue causes, which its founders

consider to be in the public interest, and which generally

may be in the public interest, by means including court

proceedings against others, it does not follow that those

proceeded against should be deprived of the ordinary

protection of a right to an order in respect of their costs

in the event the claims made against them prove unfounded."

a contrary view was expressed by Fox J in Kent v Kavanagh (1973) 1 ACTR 43 at 55 - 56 when, in dealing with the question of costs in a public interest case involving the location of a communication tower, he said:

"But I am to some extent influenced by broader

considerations. It seems to me undesirable that responsible

citizens with a reasonable grievance who wish to challenge

Government action should only be able to do so at risk of

paying costs to the Government if they fail. They find

themselves opposed to parties who are not personally at risk

as to costs and have available to them almost unlimited

public funds. The inhibiting effect of the risk of paying

costs is excessive and not in the public interest. Once, not

so long ago, litigation was more of a luxury than it now is

and for the most part only wealthy people could engage in it.

To them was usually left any action necessary to vindicate

rights of the public. This is not now regarded as an

acceptable situation. The courts must be, in practice, and

not simply in theory, available to all. In the present case

the relators comprise prominent citizens of Canberra. They

have obviously been motivated by deep concern for the welfare

of the community. Some are very distinguished Australians.

They have strong feelings, indeed strong convictions, about

the consequences of proceeding with the proposal to build the

tower on Black Mountain.

In answer I have to tell them that this is a matter of

Government administration and at this stage I do not see that

what is proposed is unlawful. I am satisfied that no order

for costs should be made."

See also Australian Confederation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1990) 100 ALR 568, Botany Municipal Council v Secretary, Department of Arts, Sport, Environment, Tourism and Territories (1992) 34 FCR 412 and Southwest Forests Defence Foundation (Inc) v Lands and Forest Commission and Anor (No 2) (1995) 86 LGRA 382.

9. Likewise the nature of public interest litigation is a factor relevant to the making of a security order. The public interest nature of proceedings was regarded as a relevant factor to be considered in deciding an application for security for costs by the Full Court of the Federal Court of Australia in Arnold (on behalf of Australians For Animals) v Queensland [1987] FCA 148; (1987) 73 ALR 607. In some situations an application for costs operates as a sword as well as a shield. When the plaintiff is impecunious and the defendant wealthy, an application for security for costs can achieve a result favourable to the defendant by the forced abandonment of the action. Where that party is the State the use of a security order must be strictly scrutinised.

10. Applications for security orders have been considered in a number of cases conducted before the Environment Court of New South Wales. In Caldera Environment Centre Incorporated v Tweed Shire Council and Anor, unreported 25 September 1992, Stein J declined to order the lodgment of security in part because the incorporated organisation was a non-profit organisation and should not be equated with a corporation. In Lake Macquarie City Council v McCloy's Pty Ltd, unreported 27 April 1995, Bannon J ordered the provision of security in circumstances where the evidence suggested that the proceedings were being illegally maintained and where the corporation had failed to pay an outstanding costs order.

11. A solution may lie with an examination of the ordinary principle that costs follow the event. If a plaintiff in public interest litigation is successful, it may be preferable that it should have no expectation that it would, if successful, recover costs. Conversely if the State is successful it need not seek nor be awarded costs. Neither should it seek security. In those circumstances a plaintiff (organisational or otherwise) would be required to provide its own resources (which would limit vexatious claims) whilst being afforded a degree of future security. This was the course taken by the Attorney-General and the relators who were funded by public subscription in "the Black Mountain Tower" litigation in Canberra (Law Reform Commission Report No 27 Standing in Public Interest Litigation 165). See also Wentworth v Woollahra Municipal Council and Ors (No 3). Wentworth v the Attorney-General for the State of New South Wales and Ors [1984] HCA 70; (1985) 59 ALJR 36 at 40. However that issue is outside the scope of this determination.

12. I am persuaded that the bona fides of the respondent and the nature of the question he seeks resolved, warrants the exercise of discretion against the making of a security order. The application is dismissed.