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[2004] FCA 549
procedural. The applicant was ordered to pay 50% of the first respondent’s costs of and incidental to the substantive application, to be taxed if not agreed; there was no order as to costs for preparing...
Although Dr Mees lost the judicial review case, the Court did not order him to pay all of the Minister's costs. It considered both his complete lack of success and the fact that he had raised important environmental-law questions, acted for public rather than personal benefit, and conducted the case well. The Court ordered him to pay half of the Minister's substantive costs and made no order about the costs of the parties' written submissions on costs.
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2,136 words · generated 30/09/2026
In Mees v Kemp (No 2), Weinberg J considered costs after Dr Paul Mees had been unsuccessful in judicial review proceedings concerning two ministerial decisions connected with a proposed freeway from the Eastern Freeway at Mitcham to Frankston. The costs judgment was delivered on 3 May 2004. It did not reconsider the merits of the judicial review challenge. Instead, it addressed what costs order should follow the earlier decision.
3 cited instruments linked from this judgment.
Dr Mees filed his application on 10 June 2003 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). He also sought an extension of time to challenge the first decision ([1]–[2]). The Minister objected to the Court's competence to hear the challenge to the second decision ([3]). On 31 March 2004, the Court refused the extension of time for the first challenge and held that the second decision was not a decision “under an enactment” for the purposes of the ADJR Act ([4]). The reasons for that substantive decision were reported as Mees v Kemp [2004] FCA 366.
The costs issue was reserved. The Minister sought his costs, relying on the ordinary approach that costs follow the event. Dr Mees sought no order as to costs. He argued that the proceeding was brought for public benefit, raised environmental concerns, and was not pursued for personal gain. He also relied on his conduct of the case, his attempts to have the Minister reconsider the first decision, and his evidence that the Minister's reasons had misled him about the matters in issue ([6]–[15]).
Weinberg J ordered Dr Mees to pay 50 per cent of the Minister's costs of and incidental to the substantive application, with those costs to be taxed if not agreed. The Court made no order for costs associated with preparing the written contentions about costs, reasoning that each party had had a measure of success on that issue ([24]–[25]). The orders address costs as between the applicant and the first respondent.
The Court treated the costs question as an exercise of discretion, not as an automatic consequence of who won the substantive proceeding. It set out the ordinary rule that costs follow the event, drawing on Ruddock v Vadarlis (No 2) ([17]). The Court also reproduced Ruddock's discussion of why an inflexible approach may be unfair in some cases, including where a case is close or difficult, the losing party has not obviously been at fault, or an adverse costs risk may deter a party of modest means ([18]). Those passages are a quotation from Ruddock, rather than original statements of the facts or reasoning in Mees.
The judgment also took care not to convert “public interest litigation” into a general exemption from costs. It referred to the caution in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale that the public-interest label should not become a basis for unprincipled or inconsistent exercises of discretion ([19]). In applying that caution, Weinberg J did not treat the environmental and public-interest character of Dr Mees's case as decisive by itself. Instead, the judgment assessed that feature together with the outcome, the nature of the issues, and the conduct of the parties.
The factors against Dr Mees were significant. He had been wholly unsuccessful: the relief he sought was refused. Moreover, the application failed because the first challenge was out of time and the second decision was not a decision under an enactment. The Court did not need to resolve the important statutory-construction questions raised in the case ([20]).
Other considerations pointed the other way. The Court described the questions raised about the Environment Protection and Biodiversity Conservation Act 1999 (Cth) as “difficult, and important”. It found that Dr Mees had raised them selflessly, seeking to promote and protect critical environmental values, and that he had conducted his case in a “wholly commendable” manner ([21]). The Court also accepted that there was “some substance” in his contention that the Minister's reasons, although legally sufficient under s 13 of the ADJR Act, could have been fuller about what the Minister had considered and deliberately ignored ([22]). These were relevant features in the discretionary assessment; the judgment did not find that the reasons were legally inadequate.
The balancing exercise led to a partial rather than complete costs order. Weinberg J stated that costs need not be “an ‘all or nothing’ proposition” ([23]). The 50 per cent order reflected both Dr Mees's complete lack of success and the features favouring a departure from the usual full costs outcome. The judgment also treated the costs submissions separately: since each side had some measure of success on that issue, neither was ordered to pay the costs of preparing those submissions ([25]).
The judgment describes the governing setting as a discretionary costs jurisdiction under s 43(2) of the Federal Court of Australia Act 1976 (Cth). Its starting point is the conventional approach that costs ordinarily follow the event. The judgment does not discard that approach. It recognises, however, that the discretion should not be “calcified” by rigid rules ([18]), and that the Court may consider circumstances supporting another order.
On public-interest litigation, the judgment's approach is qualified. The public character of a proceeding is relevant, but it is not enough by itself to displace the ordinary costs rule. The Court had regard to the caution that denial of costs to a successful party on the ground of public interest should remain rare ([19]). Its own application shows that public-interest factors can contribute to a different order when combined with other circumstances, but it does not establish an automatic immunity from costs for environmental applicants or public-interest litigants.
The practical contribution of the decision is its application of those considerations to a case in which the applicant lost on threshold grounds and no important statutory question was decided. The Court nevertheless made a partial order because of the nature of the questions raised, the applicant's purpose and conduct, and the concern about the fullness of the Minister's reasons. That is a case-specific illustration of the discretion, not a new statutory test or a categorical rule.
The supplied judgment does not describe a change in legislation or set out a before-and-after account of the law beyond that discretionary framework. It also does not provide later judicial treatment of Mees v Kemp (No 2). Accordingly, no claim about how later courts have applied or limited the decision can be made from this judgment alone.
At [17], the Court sets out the ordinary rule: “Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.” In plain English, the party who wins will usually receive an order for costs, but that is a starting point rather than an inflexible command.
At [19], the judgment includes the warning from Buddhist Society that the public-interest label must not become an umbrella for an “unprincipled, haphazard and unjudicial” exercise of discretion. The plain-English point is that a court must explain its reasons and apply the discretion consistently, rather than assume that a case deserves special costs treatment merely because a party calls it public-interest litigation.
At [20], Weinberg J notes that the applicant was entirely unsuccessful and that the proceeding failed on grounds that did not require a ruling on an important question of principle. That mattered because the case's public importance did not result in a determination of the substantive statutory questions.
At [21], the Court identifies the countervailing considerations: the questions were difficult and important, Dr Mees pursued them selflessly in relation to critical environmental values, and he conducted his case commendably. This passage shows why the Court did not simply order all of the Minister's costs.
At [22], the Court says there was “some substance” in the point that the Minister's reasons could have been more fully expressed, while expressly recognising that the reasons met the requirements of s 13 of the ADJR Act. In plain English, the Court identified a possible practical contribution to the dispute without holding that the reasons failed the statutory standard.
At [23]–[24], the Court states that costs need not be all or nothing and orders payment of half the Minister's substantive costs. This is the operative application of the balancing exercise: the applicant had to bear a substantial part of the costs, but not all of them.
The decision is most directly relevant to costs questions with a combination of features similar to those addressed by Weinberg J: an unsuccessful judicial review applicant, a proceeding said to serve a public or environmental interest, and circumstances that may justify considering an order different from full costs following the event.
Its most useful point is not that public-interest litigation is exempt from adverse costs. The judgment expressly resists that generalisation. Instead, it illustrates that the court may weigh the public purpose of the proceeding alongside the outcome, the importance and difficulty of the issues, the way the case was conducted, and any relevant features of the decision-making process ([20]–[23]).
A distinction in the facts may matter. In Mees, the Court did not decide the important statutory-construction questions because the proceeding failed on time and “under an enactment” grounds ([20]). A case in which a court actually resolves important questions of statutory interpretation would not be identical on that feature. The judgment does not say what costs result would follow in that different situation.
Likewise, the Court's positive observations about Dr Mees's conduct and the Minister's reasons formed part of the overall assessment. The judgment does not say that either factor, standing alone, requires a partial costs order. A later costs analysis would need to identify the particular circumstances and explain how they bear on the discretion, rather than treating the outcome here as a fixed formula.
The supplied judgment contains no discussion of later decisions that cite or apply Mees v Kemp (No 2). As a result, its subsequent treatment cannot be assessed from the available text, and no conclusion about its later acceptance, limitation, or development is supported here.
The authorities discussed in this judgment are earlier cases. Weinberg J refers to Ruddock v Vadarlis (No 2) for the general costs principles and the caution against rigid rules ([17]–[18]). The Court also considers the discussion in Oshlack v Richmond River Council and the warning quoted from Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale about principled treatment of public-interest litigation ([19]). These citations show the framework the Court used in 2004; they are not evidence of how later courts treated Mees itself.
The judgment's own disposition is specific: an order for 50 per cent of the first respondent's substantive costs, and no order for the costs of the written costs contentions ([24]–[25]). It does not state that this apportionment should be followed in other cases with different facts.
Several matters remain open in the supplied text. First, the judgment does not define a comprehensive test for when a proceeding qualifies as “public interest litigation”. It cautions against using the label as a substitute for principled reasoning, but resolves the case by considering the circumstances before it ([19]–[21]).
Second, the reasons do not specify how much weight each factor carried in reaching the 50 per cent figure. They identify factors pointing both ways and state that justice would be done by requiring payment of some, but not all, of the Minister's costs ([20]–[24]). The percentage is the result in this case, not a calculation method set out for other matters.
Third, the judgment does not decide what costs order might follow where public-interest proceedings succeed, partly succeed, or resolve an important question of statutory interpretation. It records that no such question needed to be determined in the substantive proceeding ([11], [20]). The discussion of those possible features appears in the parties' submissions and the cited authorities, but the costs result here rests on the facts and outcome of this case.
Fourth, the judgment does not determine whether fuller reasons would have prevented the litigation. It records the applicant's evidence and accepts that there was some substance in the contention that the reasons could have been more fully expressed ([14], [22]). It does not make a finding that the reasons caused the proceeding, or that they breached s 13.
Finally, no later authorities are included in the supplied material. The extent to which subsequent courts have adopted, distinguished, or developed this decision cannot be determined from the judgment itself.
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Background 1 By application filed on 10 June 2003, the applicant, Dr Paul Mees, sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of two decisions made by the first respondent, the Minister for the Environment and Heritage. Those decisions related to the construction by the Victorian Government of a freeway that will run from the Eastern Freeway at Mitcham to Frankston. 2 The applicant also sought an extension of time under s 11(1)(c) of the ADJR Act within which to lodge the application for an order of review in respect of the first of those two decisions. 3 On 14 July 2003, the first respondent filed an objection to competency relating to the challenge to the second decision. 4 On 31 March 2004, the Court held that the application for an order of review in respect of the first decision was out of time, and refused the application for an extension of time to commence the proceeding challenging that decision. The Court also held that the second decision was not a decision under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the Environment Protection Act"), and was therefore not a decision "under an enactment" within the meaning of that expression in the ADJR Act. See Mees v Kemp [2004] FCA 366. 5 When judgment in this matter was delivered, I reserved the question of costs as between the applicant and the first respondent. I gave directions for the filing of written contentions by those parties regarding that issue, and indicated that I would determine the matter of costs on the basis of those submissions. The applicant and the first respondent have filed written contentions. I now set out my conclusions regarding the matter of costs.
The First respondent's submissions 6 The first respondent seeks his costs in this proceeding. He points to the principle that, ordinarily, costs will follow the event. He submits that in the absence of special circumstances, a successful litigant will receive his or her costs: Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J. He notes that the applicant was wholly unsuccessful in the substantive proceeding before the Court. Every aspect of the relief sought was refused. Accordingly, he submits, no special circumstances have been shown. 7 In developing these submissions, the first respondent contends that there was no aspect of his conduct that would warrant a departure from the usual order. This was not a case where, by the manner in which he had conducted the litigation, he had, for example, unreasonably prolonged the proceedings. He had made no "groundless" contentions, and could not be said to have acted other than entirely appropriately. Moreover, the proceedings could not be said to have been "close or difficult", or to have involved "no obvious element of fault on the part of the loser": see Ruddock v Vadarlis (No 2) at [13]. 8 The first respondent acknowledges that the proceeding could be characterised as constituting "public interest litigation", and therefore as attracting the principles articulated by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72. Nonetheless, he submits that nothing in Oshlack requires that whenever an individual or body brings proceedings asserting a defence of the public interest, and protection of the environment, a different costs regime will apply, exempting that individual or body from the ordinary rule with regard to costs. 9 In support of that proposition, the first respondent refers to South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 at [5] per Kirby J and North Australian Aboriginal Legal Aid Service Inc v Bradley (No 2) [2002] FCA 564 at [93] per Weinberg J. He submits that Oshlack made it clear that "something more" than merely characterising the proceeding as "public interest litigation" is necessary to justify a departure from the usual rule, and refers to the joint judgment of Gaudron and Gummow JJ at [49]. He submits that Oshlack makes it clear that the fact that litigation is brought in the public interest is relevant, but not decisive, on the question of costs. There would have to be additional factors present before a successful litigant could be denied his or her costs: see Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 at [11] per Kennedy, Wallwork and Murray JJ. 10 He proffers several examples of the "something more" that could justify departure from the usual rule. These include cases where the litigation raises and resolves significant issues as to the interpretation, and future administration, of statutory provisions: see Oshlack at [49] per Gaudron and Gummow JJ. He also includes cases raising questions involving the liberty of individuals unable to take action on their own behalf to determine their rights. 11 The first respondent submits that the present case had none of these features. Although the applicant did raise issues regarding the construction of the Environment Protection Act, it was unnecessary for the Court to determine those issues. The application was dismissed simply on the basis that the applicant failed to show why he should be granted an extension of time and, in relation to the second decision, because it was not a decision under an enactment.
The applicAnt's submissions 12 The applicant submits that there should be no order as to costs. He notes that s 43(2) of the Federal Court of Australia Act 1976 (Cth) provides that the award of costs is in the discretion of the Court. He submits that although there is no general "public interest" exception to the rule that costs ordinarily follow the event, nor is there an absolute rule that a successful party is entitled to costs unless he has conducted the litigation in an inappropriate manner. He contends that the fact that the proceeding was instituted in order to secure a public benefit, rather than for private or personal gain, is a relevant consideration. He relies upon Oshlack at [49] per Gaudron and Gummow JJ, and [114]-[119] per Kirby J, as support for that proposition. 13 The applicant further submits that it is proper to take into account the existence of the enhanced standing provisions in ss 487 and 488 of the Environment Protection Act when determining whether costs should be awarded against an unsuccessful applicant because of the risk that such rights might otherwise be rendered an "empty gesture". He relies upon Oshlack at [48] per Gaudron and Gummow JJ and [114] per Kirby J in support of that contention. He also relies upon Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975. He submits that, as in Oshlack, his concerns were the protection of environmentally significant areas. Many members of the community share these concerns. He stood to make no personal gain from the proceedings. 14 In addition, the applicant notes that although the Court had held that the first respondent's reasons dated 29 May 2002 complied with s 13 of the ADJR Act, the applicant gave unchallenged evidence that he had been misled by those reasons as to the matters at issue in this litigation. Had the first respondent referred specifically in his reasons to the advice given by Mr Early, as he might have done, this litigation could have been avoided, or at least the proceeding might have been instituted within time. 15 Finally, the applicant submits that he did everything that could reasonably have been expected of him to resolve the matter without initiating court proceedings. For example, he asked the first respondent, pursuant to s 78 of the Environment Protection Act, to reconsider the first decision. He also conducted the hearing before the Court competently and efficiently, thereby minimising any delay or inconvenience to the respondents.
Conclusion 16 The considerations that bear upon whether the applicant should be required to pay the first respondent's costs are finely balanced. 17 The principles that govern the general discretion of the courts to award costs are set out in the joint judgment of Black CJ and French J in Ruddock v Vadarlis (No 2) at [11]: "… · Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. · Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. · A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law." 18 Their Honours went on to say at [13]: "It has been argued, in academic commentary, that the general compensatory principle rests upon two alternative rationales. The first is that the successful party is entitled to be compensated for its costs because it has been wronged at the hands of the unsuccessful party. Costs under this rationale function as a species of damages. But that characterisation is not always tenable. Where, for example, declaratory relief is sought because of genuine uncertainty about the interpretation of a document or a statute, it will not explain why the successful party should be reimbursed at the cost of its opponent where the legal issue is novel and has consequences extending beyond the particular litigation. The alternative rationale for the compensation principle is simply that the winner should not have to suffer financially for vindicating its rights. The criticism of this intuitively attractive approach is again that it does not necessarily follow that the obligation to compensate the winner should be imposed on the losing party. For the losing party may have had very good legal grounds for its position and have conducted itself in the litigation in an entirely reasonable way. Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness. Moreover it may set up a significant barrier against parties of modest means even if the contemplated claim has substantial merit: See Tollefson, "When the 'Public Interest' Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) 29 University of British Columbia Law Review 303 at pp 309-311; see also McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article" (1996) 30 University of British Columbia Law Review 309. These criticisms will not justify a global modification, in public interest cases, of the usual rule that costs follow the event. They do however indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise." 19 At the same time, it is necessary to bear in mind the cautionary observations of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale at [11]: "In our opinion 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 an unprincipled, haphazard and unjudicial manner. As McHugh J, with whom Brennan CJ agreed, in dissenting in Oshlack put it 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. 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." In our view, the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be the rarity which this Court supposed it would be in the South-West Forests Defence Foundation case." 20 There are, in the present case, factors that point both ways. It is true, as the first respondent submits, that the applicant was entirely unsuccessful in his challenge to the two decisions that were the subject of the application for review. It is also true that the challenge failed on grounds that did not require a ruling on any important question of principle, namely that it was brought out of time and, in relation to the second decision, that it was not a decision under an enactment. 21 Nonetheless, the applicant raised several difficult, and important, questions of construction regarding the operation of key provisions of the Environment Protection Act. He did so selflessly, in the context of an issue that has sharply divided the community, in order to promote and protect critical environmental values. He also conducted his case in a manner that was wholly commendable. 22 There is some substance in the applicant's contention that, although the first respondent's reasons satisfied the requirements of s 13 of the ADJR Act, they could have been more fully expressed, setting out precisely the matters that the Minister had taken into account and, more importantly, those that he had deliberately ignored. 23 The award of costs need not be an "all or nothing" proposition. Costs are discretionary, and although the discretion to award costs must be exercised judicially, reasonable minds can differ as to what would be appropriate in any given case. 24 In the present case, bearing in mind the various factors to which I have referred, justice will be done if the applicant is required to pay some, but not all, of the first respondent's costs. In my view, the applicant should be required to pay fifty per cent of the first respondent's costs, such costs to be taxed in default of agreement. 25 I propose to exclude from that order the costs involved in the preparation of the written contentions regarding costs, given that each party has had a measure of success on that issue.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Counsel for the Applicant: Applicant appeared in person
Counsel for the First Respondent: Mr P J Hanks QC with Ms R Orr
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: Mr M A Dreyfus QC with Dr K L Emerton
Date of Hearing: 17 February 2004
Mees
Kemp
[1999] WASCA 55
(2001) 115 FCR 229
(1998) 193 CLR 72
(1998) 154 ALR 411
The applicant was ordered to pay 50% of the first respondent’s costs of and incidental to the substantive application, to be taxed if not agreed; there was no order as to costs for preparing written contentions regarding costs.