Parker v Minister for Sustainability, Environment, Water, Population and Communities

Novel issues 5 The applicants contended that novelty of a point of law or construction may justify departure from the usual order as to costs relying upon Wilderness Society Inc v Minister for Environment and Water Resources (2008) 101 ALD 1. However, as that decision demonstrates at [7] what may be relevant to the exercise of the Court's discretion to award costs is not simply novelty but a novel question of general importance. In that case Branson, Tamberlin and Finn JJ relied on the judgment of Black CJ and French J in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229. That case, as Black CJ, Moore and Emmett JJ later noted at [12] of Save the Ridge Inc v Commonwealth (2006) 230 ALR 411, raised novel and important issues of law concerning the alleged depravation of the liberty of an individual. The Court expressed the principle as applying where "a novel question of much general importance and some difficulty" is raised: Save the Ridge at [12]. 6 Whilst the judgment in the present matter dealt with a part of the EPBP Act which had not been judicially considered and may be regarded as novel in that respect, I agree with the contention of the Minister that none of the questions raised could be described as difficult, or as raising questions of general importance of the kind which support the existence of special circumstances. Like the position in Save the Ridge, the proceeding raised questions of statutory construction, the ramifications of which, although not unimportant, were limited: Save the Ridge [13].

public interest 7 The applicants brought the proceeding in pursuit of their business interests as commercial breeders of cats who desired to import Savannah Cats, and not "selflessly" in the context of an issue of public importance: Mees v Kept (No 2) [2004] FCA 549 at [21] (Weinberg J). The making of the 2008 instrument may have curtailed private rights but did not curtail any "public right or privilege", or at least, did not curtail such right or privilege so as to raise an issue of sufficient public importance. 8 Whilst there may well be a benefit to the public in the law being clarified by the testing of the adequacy of the procedures adopted by the Minister, that feature is inherent in much litigation and provides, on its own, no basis for departure from the usual rule as to costs. As Heerey, Whitlam and North JJ observed in Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 at [13]: In a common law jurisdiction decisions of the courts, in private as well as public law, often clarify the law or lay down new law for the benefit of citizens, taxpayers, traders, patentees, insurers and insureds, landlords and tenants, etc etc. To that extent, much litigation has a public interest going beyond the interests of the parties. But this feature is inherent in common law litigation and provides no ground for departure from the usual rule as to costs.

disposition 9 Each of the questions raised by the proceeding were resolved against the applicants. I am not satisfied that there are any special circumstances that pertain to the proceeding which would justify a departure from the usual rule that the successful party should have its costs paid. I will order that the respondent's costs of the proceeding be paid by the applicants. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.