Northern Inland Council for the Environment Inc v Minister for the Environment

PRINCIPLES 6 The principles concerning the power of the Court to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) ('the FCA Act') are well established. In summary, such section provides the Court with an unfettered discretion save as to two factors. First, the discretion must be exercised judicially: see Oshlack v Richmond River Council (1998) 193 CLR 72 ('Oshlack') at [65] (referring to the analogous provision then contained in s 69(2) of the Land and Environment Court Act 1979 (NSW)). Secondly, certain restrictions on the Court's discretion apply with respect to representative proceedings and applications made under the Fair Work Act 2009 (Cth): s 43(1) of the FCA Act. 7 The Court has departed from the ordinary rule as to costs on a number of occasions where a proceeding is brought in the public interest, including where the unsuccessful applicant purported to have instituted judicial review with the intent of protecting or conserving the environment. However, the mere categorisation of a proceeding as being in the public interest will not justify costs not following the event: Bat Advocacy NSW Inc v Minister for Environment, Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91 at [6] ('Bat Advocacy'). It is one of a number of possible 'special circumstances' which may persuade a Court not to make a costs order against an unsuccessful applicant: Oshlack at [49]. As was stated by Black CJ and French J (as his Honour then was) in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [14]: … it must be recognised that the concept of the "public interest" is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event. 8 Considerations that constitute 'special circumstances' must turn on the facts of each case: The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 98 ALD 651 ('Wilderness Society') at [30]. As often occurs where the Court is afforded a broad discretion however, certain factors have been repeatedly referred to when determining whether or not a departure from the ordinary rule is justified. These include: a) Whether an applicant has a personal or financial interest in the outcome of the proceeding: Vadarlis at [18]. b) The public interest in, and the practical implications of, the outcome of the proceeding on relevant sections of the public: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 165 FCR 211 ('Blue Wedges') at [73]; Physical Disability Council of NSW v Sydney City Council [1999] FCA 815 at [7]. c) Whether the proceeding concerns novel or difficult questions of law that are of general importance: Blue Wedges at [73]; Wilderness Society at [31]. d) Whether the application was arguable, and the strength of the applicant's case: Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 3) [2012] FCA 744 ('Buzzacott') at [24]; Bat Advocacy at [23]; Blue Wedges at [74]. e) The applicant's conduct of its case: Buzzacott at [22] and [27]; Blue Wedges at [74]. 9 Each of the parties has made submissions in relation to these considerations. The Court is mindful to avoid what Pearlman CJ referred to as a 'shopping list' approach whereby the Court 'merely ticks with approval or rejects with a cross' a certain list of factors: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254 ('Save the Showground for Sydney') at [4]. The reasons below reflect what the Court considers to be the appropriate weight to afford to each factor in the context of the facts of the case and the arguments of the parties.

Financial or personal interests 10 The history of NICE is referred to in its submissions and an affidavit affirmed by its President. Neither the Minister nor Aston Coal has raised concerns regarding the accuracy of this information, and accordingly the Court will rely upon it. NICE, originally known as the Northern Inland Environmental Council, was formed during April 2007. The name of the Northern Inland Environmental Council was changed to NICE approximately one year later. It is not apparent what the status of NICE was during its formative years or whether indeed it was simply an unincorporated community group with similar interests and intentions. In any event, NICE was incorporated as an association under the Associations Incorporation Act 2009 (NSW) on 26 July 2012. The objects of NICE relevantly include to 'take action to promote and protect the environment' and to 'promote renewable energy and ecologically sustainable development'. 11 The President of NICE affirmed that the application was made in order to protect listed threatened species put at risk by the Maules Creek Coal Mine Project and to ensure that such project complied with the relevant Commonwealth laws. He also affirmed that neither the association nor, to the best of his knowledge, any of its members have a financial or personal interest in the proceeding. These propositions were not challenged by either the Minister or Aston Coal, and the Court accepts them to be accurate. 12 The weight to be afforded to the consideration of whether an applicant has a personal or financial interest in the outcome of the proceeding is in part dependent upon whether the applicant is a community association or a private litigant. The former class of applicant would be expected to pursue proceedings which accord with its objects and, as a community body, would ordinarily not have significant financial interests in such matters as commercial developments. This distinction was explained in Save the Showground for Sydney, where Pearlman CJ found at [21] that the lack of financial motive of a community association was a relevant factor in deciding an appropriate costs order but not one which would justify a departure from the ordinary rule. In a passage quoted with approval by Black CJ, and Moore and Emmett JJ in Save the Ridge Inc v The Commonwealth (2006) 230 ALR 411 at [16], Pearlman CJ continued: That is because the applicant was incorporated to pursue public purposes as its objects demonstrate. It could not pursue private ends. This is to be contrasted with a litigant in person, such as Mr Oshlack, who could pursue private ends but chose to bring litigation from which he had nothing to gain except a public interest. It can also be contrasted with another corporation which might have wider objects permitting it to pursue private ends but which chooses to bring litigation in the public interest. 13 The present circumstances are the same. NICE has pursued the present litigation in accordance with its objects, in particular '[taking] action to promote and protect the environment'. Further, and as has been referred to above, it does not have a financial interest in the outcome of the proceeding. These factors, although relevant, do not afford any significant weight to NICE's overall argument that no costs order should be made.

Public interest in, and practical implications of, the proceeding 14 NICE relied upon extensive examples of media reports concerning the Maules Creek Coal Mine Project, the 110 public submissions that were lodged in response to the project application (the majority of which appear to be opposed to the project), and evidence of community protests against the project, as indicative of a high level of public interest generated by the project. Both respondents submit that such evidence is of little weight, and draw on the important distinction referred to in a number of decisions between 'the public interest and matters of interest to the public': Buzzacott at [7]; Bat Advocacy at [17]. 15 As stated by Tracey J in Lawyers Forests Inc v Minister for Environment, Heritage and the Arts (No 2) [2009] FCA 466 at [11], '[t]he concept of "the public interest" is notoriously difficult to define'. The task of assessing the weight to be attributed to evidence that is said to reflect a high level of public interest, such as media reports and public submissions, is similarly difficult. It is not always helpful to compare the mere number of public submissions in response to a project to the population of either the area local to the project, the relevant state or territory, or indeed Australia, and that it is putting to one side the likelihood that the parties to the litigation would disagree on what the relevant area would be. Furthermore, unsuccessful applicants in proceedings of this nature cannot be expected to undertake complicated analyses of media patterns or the impact that media articles have on an audience, especially in circumstances where there are a 'serious inequality in resources' between the community association and the public or private body or bodies resisting the association's demands: Oshlack at [140]. The burden therefore rests with the Court to determine whether it is satisfied that there is public interest in a proceeding based upon the evidence adduced by the parties and the surrounding facts and circumstances. 16 The public submissions, media reports and protests referred to by NICE do not form the totality of the relevant evidence. Also of importance is what might fairly be described from a public perspective as the unusual circumstances in which the Minister's decision to approve the Maules Creek Coal Mine Project were made. Such circumstances were outlined at [21] to [24] inclusive of the primary judgment. That the decision to approve the project was brought forward in the context of allegations that the NSW Government had leaked commercially sensitive information concerning the project gives colour to NICE's evidence that there was public concern in relation to whether the decision was made properly, or to put it in legal terms, whether the decision was made in accordance with the EPBC Act. 17 It is also of some relevance that the Minister's decision to approve the project was final, albeit subject to conditions being added or amended in the future. That is, unless NICE successfully challenged the decision, irreversible damage may have been occasioned on the Tylophora linearis species and other flora and fauna. This is contrast to decisions such as that which was the subject of the litigation in Save the Showground for Sydney, where the consequences of carrying out the relevant development still remained to be assessed under the development application process: see [20].

Novel or difficult questions of law 18 NICE submits that the proceeding raised two novel issues of law. The first was the proper construction of s 136(5) of the EPBC Act in the context of the Minister's decision making powers (being the first ground of the application), and the second was whether s 139(2)(b) of the EPBC Act involves a jurisdictional fact (being the fourth and fifth grounds of the application). 19 In its submissions on the application, NICE argued that the Minister, in making the decision to approve the project, had taken into account the alleged disclosure of commercially sensitive information by the NSW Government. Ultimately, the first ground of the application was rejected on a factual basis, that being that the alleged disclosure was not taken into account by the Minister in deciding whether to approve the project or what conditions to attach to an approval. Whilst there was argument on the proper construction of s 136 of the EPBC Act, no novel or difficult question of law was raised and certainly not one of general importance. 20 The Court accepts that the question of whether s 139(2)(b) of the EPBC Act involves a jurisdictional fact, which was addressed at [66]-[89] of the primary judgment, was a novel issue and not one that was easily resolved. However, this must be considered in light of subsequent alternative findings in the primary judgment. The fact upon which s 139(2)(b) was premised in the context of the proceeding was whether the project would have, or would be likely to have, a significant impact on Tylophora linearis. Key evidence that NICE sought to rely upon in order to prove such fact was subject to a direction under s 136 of the Evidence Act 1995 (Cth) to the effect that it could only be used to prove what material was before the Minister when making his decision to approve the project. This was found at [111] of the primary judgment to prima facie be fatal to the submission of NICE that the project would have, or would be likely to have, a significant impact on Tylophora linearis. Secondly, it was found that if the s 136 direction was not issued, the totality of NICE's evidence would have been insufficient to establish such finding in any event: see [119] of the primary judgment. Even if NICE had been successful in its submission that s 139(2)(b) involved a jurisdictional fact, the fact would not have been made out. It follows that even though grounds 4 and 5 of the application raised a novel issue, those grounds were not relevantly novel given that the resolution of such issue amounted to little more than an academic exercise in light of NICE's evidence.

Whether the application was arguable 21 NICE submits that each of the grounds of the application were arguable. This is correct, although none of the grounds of the application were particularly strong. Of note however were grounds 4 and 5 of the application, which for the reasons outlined immediately above bordered on specious. The 'serious and detailed consideration' (being the words of NICE) of each ground in the primary judgment is not indicative of the complexity or strength of NICE's arguments.

NICE's conduct of its case 22 NICE submits that it conducted its case expediently and diligently for two main reasons. First, the application was filed within one month of the statement of reasons for the Minister's decision to approve the project being published. Secondly, NICE did not oppose Aston Coal's interlocutory application to expedite the hearing. 23 The Court accepts that NICE acted with due expediency and diligence. However the conduct of an applicant's case cannot always be considered independently from the consideration of whether the case was arguable. Conducting a case properly not only means prosecuting it without undue delay. It also includes ensuring that appropriate consideration is given to the arguments that should be agitated, and whether evidence, in an admissible form, exists to support the applicant's claims.

CONCLUSION 24 In light of the public interest nature of the litigation, the arguable but not particularly strong grounds of the application, and the fact that none of those grounds raised a relevantly novel issue of law, NICE should bear a substantial proportion of the costs of the application. That proportion will be 80% of the costs of both the Minister and Aston Coal. 25 Each party should bear their own costs of preparing written submissions on the issue of costs given that each has had a measure of success. 26 With respect to the costs of the interlocutory application, it is important to note that Griffiths J ordered costs to be in the cause. Submissions in this regard were scant, and do not justify a departure from the ordinary rule. As NICE was unsuccessful in the application, it should pay the costs of and incidental to the interlocutory application without apportionment. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.