Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another

APPLICANT Mr P W Larkin (Barrister) SOLICITORS Public Interest Advocacy Centre

FIRST RESPONDENT N/A LEGAL REPRESENTATIVES: SOLICITORS N/A

SECOND RESPONDENT Mr Gageler SC SOLICITORS Baker & McKenzie

IN THE LAND AND Matter No. 40021 of 2002 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 26 July 2002

Roy Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy Applicant v The Director-General of the National Parks and Wildlife Service First Respondent Stockland (Constructors) Pty Ltd Second Respondent

The second respondent, Stockland (Constructors) Pty Ltd, is seeking an order for costs against the unsuccessful applicant, Roy Kennedy. The first respondent has not made an application for a costs order.

Mr Larkin appears for the applicant and contends that no order should be made against his client for the following reasons:- (1) The proceedings can be characterised as "public interest litigation" ;

(2) The applicant did not commence the proceedings for the purpose of personal gain; and

On the other hand, Mr Gageler SC, who appears for the second respondent, argues that although it is open for the Court to find in favour of the applicant in respect of reason (2), he submits that no public interest is raised in this case.

If there is a principle to be applied in determining whether a costs order should be made in litigation characterised as being brought in the public interest it arises out of the deliberations of Stein J and the High Court in Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (1994) 82 LGERA 236 and Oshlack v Richmond River Council (1998) 193 CLR 72 respectively.

The matters taken into account by Stein J in the exercise of his discretion not to make a costs order in Oshlack at first instance are summarised conveniently in the joint judgment of Gaudron and Gummow JJ at p 80 as follows:- (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".

Gaudron and Gummow JJ did not directly address the issue of whether it was "public interest litigation" but rather the question was whether the subject matter the scope and purpose of s 69 of the Land and Environment Court Act 1979 are such that they enable the Court to pronounce the reasons given by Stein J to be definately extraneous to any objects the legislature could have had in view of enacting s 69. They found at [40] as follows:- There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.

They further found at [45] as follows:- … in its operation upon litigation under s 123 of the EPA Act, s 69 of the Court Act is not to be narrowly construed. Further, it is applicable to new species of litigation and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation.

They concluded finally at [49] that:- …Stein J did not take into account considerations which can be said to have been definately extraneous to any objects the legislature could have had in view of 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.

McHugh J, with whom Brennan CJ agreed, found that, in his 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" . He doubted there was any definition that enabled the Court to characterise litigation as "public interest litigation" with acceptable precision. Without an organising principle McHugh referred to the real danger that by invoking the "public interest litigation" factor an award of costs will depend on nothing more than the social preferences of the judge (at [75]). In his opinion, in so far as various decisions referred to by Stein J provide a basis for departing from the usual order as to costs, they are wrong in principle and should be overruled ( at [101]).

Gaudron and Gummow JJ appear to have recognised the same danger at [30] when they adopted a description of "public interest litigation" as a "nebulous concept" unless given "further content of a legally normative nature" , as Stein J had done.

Kirby J, who agreed with Gaudron and Gummow JJ that the decision by Stein J should remain undisturbed, found that public interest litigation is but one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule that legal costs will usually be ordered in favour of the successful party to provide compensation in the form of a partial indemnity for the costs incurred. After referring to the "special, and in some ways peculiar legislation" enabling proceedings to be commenced by "any person" in this Court, Kirby J observed that "a rigid application of the compensatory principle in costs orders would be completely impermissible" and "would discourage, frustrate or even prevent the achievement of Parliament's particular purposes" (at [134]).

The common ground I deduce from the majority judgments in Oshlack is that, starting from a position which favours costs orders against an unsuccessful party, if the Court finds the nature of the litigation concerns public rather that private rights and there are sufficient special circumstances which are not extraneous to the object of the enactment of s 69 in the context of proceedings commenced under an open standing provision, the discretion to make a costs order may be exercised having regard to those special circumstances.

The present proceedings obviously involved the application of public law rather than private law. The main challenge, however, related to whether consents issued by the Director-General of the National Parks and Wildlife Service should be declared void on the ground of the lack of procedural fairness by failing to afford the applicant, as a representative of the Sandon Point Aboriginal Tent Embassy group, an opportunity to inspect artefacts before commenting on their cultural significance and then not taking into account the fact that he had not had the opportunity to inspect the artefacts. The Court was satisfied that the procedure adopted by the decision-maker was reasonable and fair. The challenge, therefore, failed on the basis of the evidence in a conventional way.

It was not part of the adjudication to elucidate or determine the meaning of the relevant legislation. There was no significant issue raised beyond the facts found in the particular circumstances of the case.

Mr Kennedy was a representative of a group who, as Aboriginal persons, had a particular interest in the artefacts the subjects of the consents. That in itself is not sufficient, in my opinion, to characterise the litigation as public interest litigation or to give rise to sufficient special circumstances to justify a departure from the ordinary practice as to the making of a costs order in favour of a successful party. In so far as Mr Kennedy was acting in a representative capacity, nothing in the joint judgment with Gaudron J in Oshlack suggests that Gummow J intended to revise his views expressed in the judgment of the Federal Court in Botany of Municipal Council and Others v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories and Others (1992) 76 LGRA 213 at 218 when he agreed with what Burchett J said in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171 as follows:-

If the 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. 16. Moreover, effectively the Court found that Mr Kennedy was the author of his own misfortune.

17. Accordingly, the Court is not satisfied that there are special circumstances in this case that deprive the second respondent of the benefit of a compensatory order in respect of costs.

18. The Court makes the following formal order:- (1) The applicant is to pay the costs of the second respondent, including the further hearing on 23 July 2002.

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