Hardman v Ward [2004] TASSC 74

Resource Management and Planning Appeal Act 1993 (Tas), s28(1).

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, discussed.

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, applied.

Judgment Number: [2004] TASSC 74

1 On 18 February 2004, the Resource Management and Planning Appeal Tribunal ("the Tribunal") made an order that the appellants pay the respondents costs of an appeal to the Tribunal.

2 The appellants have appealed to this Court against this decision pursuant to the Resource Management and Planning Appeal Act 1993 ("the Act"), s25, and the Judicial Review Act 2000, s17.

3 The first respondents, Mr and Mrs Ward, obtained a conditional permit from the Hobart City Council to erect a house on land at 11A Beach Road, Sandy Bay. This land is within the City of Hobart Planning Scheme, Precinct 32. The development of land for a house is discretionary.

4 The appellants, Mr and Mrs Hardman, live next door. They objected to the development. They made representations to the Council in accordance with the right conferred upon them by the Land Use Planning and Approvals Act 1993 ("LUPA"), s57(5).

5 The second respondent, Mr Pitt QC, is a joint owner of the land in respect of which the permit issued. Mr Pitt is the Chairperson of the Tribunal. He took no part in the proceedings in this Court other than to file a formal document that he would abide by the order of the Court.

6 LUPA, s61(5), confers a right of appeal to the Tribunal upon a person who makes a representation pursuant to s57(5) upon an application for a permit being made. The appellants exercised that right. The Tribunal constituted to hear the appeal did not, of course, include Mr Pitt. However, it considered that as a co-owner he had an interest in the appeal and made him a party pursuant to the power conferred by the Act, s14(2). Mr Pitt took an active part in the proceedings in the Tribunal.

7 On 23 December 2003, the Tribunal affirmed the decision of the Council. Its reasons for doing so concluded with a written invitation to the parties to make an application for costs. Each party, other than the Council, did so. The appellants applied for an order that the respondents pay their costs of the appeal to the Tribunal and the respondents sought an order that the appellants pay their costs.

8 The power to award costs appears in the Act, s28. Subsections (1) and (2) provide:

"28 - (1) The Appeal Tribunal must make such orders in relation to the costs of an appeal as it thinks fit and in making such orders must take into account -

(b) whether a party has raised frivolous or vexatious issues at the hearing; and

(c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and

(d) the capacity of the parties to meet an order for costs.

(2) If the Appeal Tribunal is of the opinion that an appeal is frivolous or vexatious, the Appeal Tribunal must dismiss the appeal and direct the appellant to pay an amount determined by the Appeal Tribunal as being the costs of the appeal and the costs of any other party to the appeal."

9 I had occasion to consider the meaning of subs(1) in Carnevale v Baker & Ors A3/1996. At 2, I said:

"The terms of the Act, s28(1) are quite clear. The Tribunal must take into account all of the matters prescribed by pars(a) - (d) inclusive, and having done so must make such order as it thinks fit. The matters prescribed in pars(a) - (d) are not necessarily the only matters that are taken into account but, in the proper exercise of the discretion, each must be considered. The weight to be given to each of those matters and any other relevant matter is for the Tribunal to determine in accordance with the relevant material in each case.

"The power to award costs is 'entirely the creation of statute' per the Full Court of Queensland in Wyatt v Albert Shire Council (1986 - 1987) 61 LGRA 116 at 119. As expounded in that decision, there is no prima facie rule that generally speaking, the costs should follow the event although that is a general principle that the common law courts have adopted in the exercise of the discretion to order costs. The Tribunal must not exercise the power conferred on it by the Resource Management and Planning Appeal Tribunal Act 1993, s28(1) in an arbitrary manner. It must consider the matters set out in the subsection in a reasoned way but is otherwise unfettered by principles that govern the proper exercise of the discretion at common law. See Wyatt (supra) at 119 - 120."

The Tribunal's reasons for making the impugned order

10 After two introductory paragraphs, the Tribunal's reasons turned to the High Court decision of Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. In this case, the court considered the meaning of the power to award costs conferred on the Land and Environment Court (NSW) by the Land and Environment Court Act 1979 (NSW), s69(2), which relevantly provides:

"(2) Subject to the rules and subject to any other Act:

(b) the Court may determine by whom and to what extent costs are to be paid, and

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis."

11 The Tribunal cited substantial passages from the three judgments that formed the majority in Oshlack. It concluded from those judgments that on the issue of costs, the Tribunal should adopt "a general practice by which ordinarily (including a case brought by a party under the 'open standing' rule and purportedly in the public interest), costs are ordered in favour of the successful party", per Kirby J at 122. The Tribunal went on to say at par5 of their reasons:

"The mere fact that a costs discretion is conferred on a court or tribunal administering environmental law or planning law with an open standing rule is not enough to negate the primacy of the principle that costs ordinarily follow the event."

12 At par6, there appears this critical passage in the Tribunal's reasons for judgment:

"Consistently with Oshlack the Tribunal adopts a starting point which favours a costs order against the unsuccessful party and then after considering the s28 matters and any other relevant matters will decide whether the circumstances of this case are such that the justice of the case rests with some other order. In taking this approach the Tribunal is conscious that it is contrary to Carnevale v Baker (1996) 90 LGERA 172 where Underwood J said at 176 '... there is no prima facie rule that generally speaking, the costs should follow the event'. The Tribunal considers itself to be bound to follow the approach explained by the High Court in Oshlack, two years later. In Carnevale there was no finding that the s28 listing of certain considerations demonstrated an intention to abandon the primacy of the compensatory principle."

13 On behalf of the appellants, Mr McElwaine submitted that:

1 The reasoning of the majority in Oshlack had no application to the issue before the Tribunal and that the Tribunal misunderstood Oshlack.

2 In consequence of its misunderstanding of Oshlack, the Tribunal misconstrued the Act, s28, in that it adopted as a primary rule that costs should follow the event.

3 The relevant law with respect to the meaning of the Act, s28, is set out in Carnevale v Baker & Ors (supra). That decision is not affected by Oshlack and by not applying the law, the Tribunal fell into error.

14 Mr Williams, counsel for the respondents, submitted:

1 The Tribunal did not conclude that the law required it to adopt as a primary rule that costs follow the event.

2 In any event, as the discretion is unfettered, as a matter of principle, the Tribunal was entitled to adopt a primary rule either that costs should follow the event or that there should be no order as to costs if it chose to do so.

3 The Tribunal did not decline to apply the law as stated in Carnevale. It determined only that Carnevale did not preclude the Tribunal from adopting a primary rule that costs should follow the event.

4 Alternatively, if there was error of law, it did not taint the exercise of the discretion and the appeal should be dismissed.

15 The Land and Environment Court (NSW) is a superior court of record. The members of the court have a status equal to that of judges of the Supreme Court of New South Wales. It has a vast heterogeneous appellate jurisdiction. It operates in several divisions. The Land and Environment Court Act (NSW), s20(1)(c), conferred jurisdiction on the court to hear and determine proceedings under the Environmental Planning and Assessment Act 1979 (NSW), s123. This provision provides that any person (standing being irrelevant) may bring proceedings in the court in order to restrain or remedy a breach of the Act. That is just what Mr Oshlack did. He sought a declaration that the respondent council had given a development permit that was void. He also sought an injunction restraining the developer from carrying out a development in accordance with the council permit. Mr Oshlack contended that the council exercised its decision-making power unreasonably by concluding that the development would not be likely to adversely affect the fauna and by failing to obtain a fauna impact report. The proceedings were dismissed.

16 The developer and the council sought an order for costs against Mr Oshlack. The learned judge at first instance held that there should be no order for costs. The council appealed to the New South Wales Court of Appeal and succeeded. Mr Oshlack obtained leave to appeal to the High Court where the primary judge's order was restored.

17 The jurisdiction of the Land and Environment Court to make an order for costs is to be found in the Land and Environment Court Act, s69(2), which provides:

"(2) Subject to the rules and subject to any other Act:

(b) the Court may determine by whom and to what extent costs are to be paid, and

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis."

18 The joint judgment of Gaudron and Gummow JJ set out, at 80 - 81, the principal factors upon which the primary judge relied to make the impugned order:

"(i) The 'traditional rule' that, despite the general discretion as to costs being 'absolute and unfettered', costs should follow the event of the litigation 'grew up in an era of private litigation'. There is a need to distinguish applications to enforce 'public law obligations' which arise under environmental laws lest the relaxation of standing by s 123 have little significance.

(ii) The characterisation of proceedings as 'public interest litigation' with the 'prime motivation' being the upholding of 'the public interest and the rule of law' may be a factor which contributes to a finding of 'special circumstances' but is not, of itself, enough to constitute special circumstances warranting departure from the 'usual rule'; something more is required.

(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation 'other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna'.

(iv) In the present case, 'a significant number of members of the public' shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a 'public interest' in the outcome of the litigation.

(v) The basis of the challenge was arguable and had raised and resolved 'significant issues' as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had 'implications' for the Council, the developer and the public.

(vi) It followed that there were 'sufficient special circumstances to justify a departure from the ordinary rule as to costs'."

19 Mr McElwaine submitted that Oshlack's case was concerned with enforcement proceedings. Such proceedings are quite different from those in which the parties in this appeal were engaged before the Tribunal and accordingly, the Tribunal erred in applying what it believed to have been the ratio decidendi in Oshlack to the case at hand. In order to understand the High Court judgments in Oshlack, it is first necessary to look at Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 and the judgments of the Court of Appeal (NSW) in Oshlack, reported at (1986) 39 NSWLR 622.

20 Latoudis was concerned with the proper exercise of an unfettered statutory power to award costs against an informant upon the dismissal of an information in the magistrates court. The High Court considered the historic rule that "the Crown does not receive and does not pay costs", presumably based on the proposition that fear of having to pay costs may inhibit the prosecution of criminal proceedings that should be brought in the public interest. The majority (Mason CJ, Toohey and McHugh JJ) held that there was no basis for interpreting an unfettered statutory discretion in accordance with a principle that pre-dated its enactment, and that the proper exercise of the discretion required that ordinarily, a successful defendant recovered costs. In Latoudis the majority judgments observed that it was important to remember that costs were compensatory and not punitive, and held that the fact that it was reasonable for the prosecution to have been brought and the fear that costs orders in favour of successful defendants might deter the police from bringing prosecutions that ought to be brought, were irrelevant considerations in the proper exercise of the discretion.

"It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott (1981) 53 FLR at 111."

22 Toohey J also held that reasonableness in bringing the prosecution and claims that orders in favour of defendants might deter proper prosecutions being brought in the future were irrelevant to the proper exercise of the statutory discretion. He articulated the principle that costs orders were compensatory and not punitive and said, at 565, with respect to the exercise of the discretion following the hearing on an information:

"It is unnecessary to speak in terms of a presumption; it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket."

23 In his judgment McHugh J adopted the same approach as the other members of the majority and said, at 569:

"Likewise, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution. not to exercise his or her discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation. The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings [authority cited]."

24 The New South Wales Court of Appeal was greatly influenced by the decision in Latoudis. All three members of the court noted that the statute pursuant to which Mr Oshlack brought his litigation permitted those without standing at common law to commence proceedings (as does LUPA). The court also noted that the learned primary judge found that Mr Oshlack brought the proceedings without any prospect or desire for personal gain and in the public interest and that his motivation was to uphold environmental law and preserve endangered fauna.

25 Clarke JA determined that the decision in Latoudis excluded the public interest motives from the ambit of relevant considerations when exercising the cost discretion and that there was no basis upon which Latoudis could be distinguished. His Honour held that the learned primary judge fell into error by taking into account irrelevant material. Sheller JA took the same view as Clarke JA. He also relied upon the proposition that an order for costs was compensatory in nature and said, in conclusion, at 636:

"The practice, which has developed in the Land and Environment Court and been espoused by Stein J in this case, of taking account of the fact that the proceedings were brought not for private benefit but in the public interest, when considering what costs order should be made, is in conflict with the principles which Latoudis v Casey sets out. If a costs order against the respondent amounted to a penalty, clearly a court, as a matter of discretion, would not lightly impose such a penalty upon a person who brought proceedings in the public interest. But if, as is the law, the costs must be treated as compensation for a successful party, in this case the appellant, the fact that the unsuccessful party has proceeded in the public interest is not a consideration to be taken into account in determining what order should be made for costs."

26 Cole JA also relied upon the statements in Latoudis that an order for costs was compensatory and held that by taking into account the fact that the legislation permitted proceedings to be brought by persons without standing at common law in the public interest, the learned judge at first instance fell into error.

Latoudis considered by the High Court in Oshlack

27 In the High Court, Brennan CJ's judgment consists of only three paragraphs. He was in the minority in Latoudis, but accepted that he should follow the principle established in that case, viz, the bringing of litigation in the public interest "does not provide a sufficient reason by itself for refusing the successful respondent its costs ..." (75). Brennan CJ concluded that he was in general agreement with the reasons for judgment of McHugh J. The latter said, at 91 - 92:

"The question in this appeal is whether, in declining to make an order that an unsuccessful applicant in litigation pay the costs of the successful respondent, a court can properly rely, in whole or in part, on the fact that the relevant proceedings can be characterised as 'public interest litigation'. In my view, the fact that the proceedings can be characterised as public interest litigation is irrelevant to the question whether the court should depart from the usual order that costs follow the event."

28 Referring to the fact that the exercise of the statutory discretion is not fettered, McHugh J said, at 96:

"Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation In re Elgindata Ltd (No 2) [1992] 1 WLR 1207; [1993] 1 All ER 232. In this manner, the law has gradually developed principles to guide the proper exercise of the discretion and, in some cases, to highlight extraneous considerations which, if taken into account, will cause the exercise of the discretion to miscarry. Consistent with the aim of justice, the law could not have developed otherwise. As Mason CJ said in Latoudis [1990] HCA 59; (1990) 170 CLR 534 at 541; see also Dawson J at 558:

'it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity'."

29 His Honour went on to observe that "by far the most important factor" is the result of the litigation and, traditionally, exceptions to the usual order that costs follow the event focus on disentitling conduct by the successful party.

30 Following an analysis of Latoudis, McHugh J, who was in the majority in that case, rejected the proposition that by enacting open standing provisions Parliament intended to alter the well established rule that, ordinarily, the proper exercise of the discretion required that the successful party had its costs. He said that had the legislative intention been different, it would have so enacted. McHugh J concluded at 110:

"The characterisation of Mr Oshlack's proceedings against the Council as public interest litigation was irrelevant to the question of costs. And in my view so were all the additional factors that Stein J relied on to hold that 'special circumstances' existed to justify a departure from the usual order as to costs."

31 Brennan CJ and McHugh J dissented in Oshlack. Both were members of the court in Latoudis. The majority in Oshlack comprised Gaudron and Gummow JJ (joint judgment) and Kirby J. None of them were members of the court in Latoudis.

32 The joint judgment in Oshlack said that the issue in Latoudis was what are the criteria to be applied by a court of summary jurisdiction in the exercise of a discretion to award costs in criminal proceedings upon an application by a successful defendant. This, of course, is correct. The joint judgment then proceeded to distinguish Latoudis at 83, saying:

"Latoudis turned upon the construction of s 97(b) against the historical background, identified by Mason CJ [1990] HCA 59; (1990) 170 CLR 534 at 538, Dawson J [1990] HCA 59; (1990) 170 CLR 534 at 557 and McHugh J [1990] HCA 59; (1990) 170 CLR 534 at 567, that in criminal proceedings the Crown neither received nor paid costs. The reasoning and decision in Latoudis are not determinative of the issue whether, in the present litigation, the primary judge erred in law in the exercise of the discretion conferred upon the Court by s 69(2) of the Court Act by taking irrelevant matters into account."

33 With the greatest respect to their Honours, that statement seems to pay little regard to the statements of principle expressed in the reasoning of the majority judgments in Latoudis, some of which I have cited and which weighed so heavily with the New South Wales Court of Appeal in Oshlack.

34 In Oshlack, Kirby J referred to the weight that the Court of Appeal gave to the judgments in Latoudis and the conclusion reached by all three members of the court that the learned primary judge erred by taking into account the fact that the legislation authorised "no standing" litigation. He said, at 110:

"Each of the judges in the Court of Appeal concluded that the flaw in Stein J's reasoning was a failure to conform to the holding of this Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. The point of general importance is, therefore, whether that holding forbade Stein J from giving weight to the public interest character of the proceedings. In my view, it did not and the appeal must succeed."

"The decision [in Latoudis] in that case does not, and could not, lay down a general rule that the only consideration to be taken into account in the exercise of a statutory costs discretion is the compensation of the successful party for the recoverable expense to which it has been put by the litigation."

36 Kirby J then said that Latoudis was concerned with a particular problem with an historical background but note should be taken of the comments made by the judges in that case about the need to pay close attention to the purposes of the particular legislation in question. With respect to that case, Kirby J concluded, at 119 - 120:

"Therefore, having regard to the context in which Latoudis fell to be decided, stated most clearly in the opening words of the judgment of Mason CJ [1990] HCA 59; 1990) 170 CLR 534 at 537, it was erroneous to derive from that decision a general rule governing the exercise of all unqualified statutory cost discretions, whatever the terms in which they were stated, whatever the context concerning the court and the purpose for which they were provided and whatever the peculiarities of the jurisdiction in which costs orders would play a part."

37 Again, with the greatest respect, it seems to me that his Honour gave very little weight to the principles that underpinned the majority judgments in Latoudis. However, whether I am right or wrong about all of that, it is clear that the majority in Oshlack distinguished, but did not overrule, Latoudis.

38 As I read the joint judgment, the key to its reasons lies in the passage at 84. Their Honours said that in its submissions, the respondent stressed the principles upon which the Court of Appeal had relied in determining that the learned primary judge had taken irrelevant considerations into account while the appellant stressed the "public interest" nature of the litigation. Their Honours described the latter as a nebulous concept and said:

"The true issue here is not whether this was 'public interest litigation'. Rather, to adapt the terms used by Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505, to which reference was made earlier in these reasons, the question is whether the subject-matter, the scope and purpose of s 69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be 'definitely extraneous to any objects the legislature could have had in view' in enacting s 69."

39 The joint judgment cited the following from the judgment of Brennan J (as he then was) in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 577:

"It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise".

40 With respect to that passage, their Honours said at 86:

"It is in that sense that there is to be understood the earlier statement in this Court as to the existence of 'a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary'."

41 Following that passage, their Honours then said:

"At bottom in the present case is the question whether rules of practice with respect to similarly expressed provisions in legislation applicable in other species of litigation have so hardened 'that they look like rules of law' McDermott v The King (1948) 76 CLR 501 at 514, which render irrelevant to the exercise of the discretion conferred by s 69 those considerations to which the Council successfully objected in the Court of Appeal."

42 The joint judgment then proceeded to assert that:

* there was no absolute rule that the exercise of a discretionary costs power required that, absent disentitling conduct, a successful party be compensated by the unsuccessful party; and

* there was no absolute rule that the sole purpose of a costs order is to compensate one party at the expense of another and pointed to commonly made orders for costs to be paid out of the estate of a deceased person.

43 The joint judgment observed that the Environmental Planning and Assessment Act (NSW), s123, permitted a new species of litigation and should not be construed narrowly. Their Honours then said that the primary judge:

(1) reasoned from a starting point which favoured costs orders against Mr Oshlack;

(2) noted the public interest nature of the litigation;

(3) said that "something more" than that was needed before a successful defendant should be denied costs;

(4) identified as "something more" the matters set out in pars(iii), (iv) and (v) of the summary of the primary judge's reasons (cited above at par18);

"In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case."

44 I have set out my analysis of the joint judgment in what I am afraid has been rather tedious length, because as I understand it, their Honours took the view that:

(1) although in much civil and criminal litigation, costs orders were usually compensatory and follow the event, and although it was proper for appellate courts to provide guidelines for the proper exercise of the discretion, such guidelines had not hardened into rules;

(2) the primary approach to the exercise of the discretion requires that consideration be given to the nature, scope and object of the legislation in which the power to order costs is enacted and pursuant to which the litigation was conducted;

(3) generally, although not invariably, costs are compensatory and the proper exercise of the discretion will call for an order in favour of the successful litigant;

(4) the legislation in the Oshlack case was a new species and called for a consideration of varied interests not hitherto relevant;

(5) the primary judge started from what might be called the "ordinary position", noted in (3), and then took into account the enumerated matters;

(6) in so doing, the primary judge did not fall into error because of the nature, scope and objects of the legislation, and because there is no absolute general rule that bringing the proceedings in the public interest pursuant to open standing legislation is an irrelevant factor in the exercise of an unfettered costs discretion.

45 Although not expressed in the same terms as the joint judgment, I understand Kirby J to have taken the same approach as did Gaudron and Gummow JJ. He too, emphasised that the nature, scope and object of the legislation which authorised the litigation and which conferred the power to order costs were significant considerations in determining what factors were relevant upon the exercise of a costs discretion. His Honour said, at 114, that the statutory context relevant in Oshlack, "alters to some extent, the assumptions upon which civil litigation in this country has hitherto, ordinarily taken place" [my emphasis].

46 At 120 - 123, his Honour set out six matters under the heading "Statutory Costs Discretions - General Approach". All six are set out in the Tribunal's decision and relied upon by it. It is unnecessary to set them out again. Amongst them, Kirby J acknowledged that it is appropriate for appellate courts to set out the guidelines but, as the joint judgment also observed, such guidelines should not be seen as rigid rules. His reasoning culminated in this passage at 122:

"Given that statutory context and the clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of Parliament's particular purposes. The compensatory principle is adequately reflected by the adoption of a general practice by which, ordinarily (including in a case brought by a party under the 'open standing' rule and purportedly in the public interest), costs are ordered in favour of the successful party. However, the general objects of the legislation must also find reflection in orders providing for costs. Regard may therefore be had to any public interest served by the party which has initiated the litigation, although it is ultimately unsuccessful."

47 Accordingly, Kirby J held, as did Gaudron and Gummow JJ, that Latoudis was not authority for a general proposition that public interest was an irrelevant consideration in the exercise of every statutory costs discretion. The scope, nature and object of the statute which authorised the litigation indicated what factors were material to the proper exercise of the discretion. Costs are usually, but not always, compensatory and, absent disentitling conduct by the successful party, are awarded in favour of that party. This is the ratio decidendi and produced the result that the learned primary judge did not take into account any irrelevant consideration in the exercise of his discretion.

Application of principle to the Tribunal's decision

48 I think that the view expressed by me in Carnevale v Baker (supra) at 4 that:

"... there is no prima facie rule that generally speaking, the costs should follow the event although that is a general principle that the common law courts have adopted in the exercise of the discretion to order costs"

needs to be modified in the light of the majority judgments in Oshlack.

49 Mr McElwaine's submission that the reasoning of the majority in Oshlack had no application to the present case, is rejected. As mentioned earlier in these reasons, this submission was based upon the fact that Oshlack was a case concerning enforcement of statutory environmental provisions, quite unlike the present matter which was a hearing de novo about whether a planning permit should be granted. Whilst that distinction is quite correct, the principles expressed by the majority in Oshlack did not rely upon the fact that the proceedings were brought to enforce statutory environmental provisions. The relevant reasoning in Oshlack was that the litigation was brought pursuant to open standing provisions, as was the litigation brought before the Tribunal in this case, and that having regard to the nature, object and scope of the legislation, it was not an error to take that fact into account and the fact that the motivation for bringing the proceedings was the public interest in the enforcement of environmental law and the preservation of endangered fauna.

50 Although the Act, s28(1), directs the Tribunal to consider four specific matters when exercising the discretion to order costs, the list is not exhaustive. At least three of them would require consideration even if not mentioned in the subsection. The discretion is otherwise unfettered. The Tribunal correctly observed that notwithstanding the four matters set out in subs(1), the statutory discretion is wide and one that must be exercised judicially.

51 In my opinion, the Tribunal did not misunderstand or misapply Oshlack. The Tribunal reasoned, as did the learned primary judge in Oshlack, from the proposition that absent disentitling conduct by the successful party, ordinarily costs will follow the event, even in litigation brought pursuant to open standing legislation. The Tribunal then said, at par5:

"The mere fact that a costs discretion is conferred on a court or tribunal administering environmental law or planning law with an open standing rule is not enough to negate the primacy of the principle that costs ordinarily follow the event."

52 That statement is not to be construed as a determination that the bringing of litigation in the public interest pursuant to open standing legislation is an irrelevant factor That the Tribunal understood this proposition appears from the following sentence at the end of par5 of its reasons for making the impugned order:

"If the order is to be that each party is to pay its own costs there needs to be some principle based reason for so ordering. Of course 'a rigid application of the compensatory principle in costs orders would be completely impermissible'."

"Consistently with Oshlack the Tribunal adopts a starting point which favours a costs order against the unsuccessful party and then after considering the s28 matters and any other relevant matters will decide whether the circumstances of this case are such that the justice of the case rests with some other order. In taking this approach the Tribunal is conscious that it is contrary to Carnevale v Baker (1996) 90 LGERA 172 where Underwood J said at 176 '... there is no prima facie rule that generally speaking, the costs should follow the event'."

54 I detect no error in the foregoing. The Tribunal did not take into account any irrelevant matter, nor did it fail to take into account any relevant matter. Taking as a starting point the proposition that costs are compensatory and ordinarily will be awarded to a successful party is consistent with authority. The Tribunal correctly applied the principles enunciated by the majority in Oshlack.