Plaintiff v First Defendant

3 In a judgment delivered on 26 November 2025,[1] I concluded that Animals Australia did not have standing to bring the proceeding. Had it been necessary, I would have granted Sinclair's application for summary judgment.

4 There is agreement to an order that Animals Australia pay Sinclair's costs of the proceeding. Animals Australia opposes an order that it pay PrimeSafe's costs.

(a) PrimeSafe's interest in the proceeding was the proper construction and operation of the Meat Industry Act 1993 (Vic) ('MI Act') in respect of which it is the regulator. PrimeSafe should not have its costs of the construction issues because its submissions were rejected and because it will benefit from the clarification by the Court as to its powers and functions under the MI Act.[2]

(b) On all other issues raised by the proceeding, PrimeSafe's submissions were duplicative of Sinclair's. Given that Sinclair was an active, well-resourced contradictor, PrimeSafe should have adopted a neutral stance in respect of all matters other than the construction issues.

(a) There were no distinct construction issues in relation to the question of standing. PrimeSafe's submissions dealing squarely with the statutory context in which standing was to be determined were accepted.

(b) PrimeSafe properly avoided duplication by adopting rather than repeating Sinclair's submissions on the question of whether Animals Australia had a special interest in the subject matter of the proceeding.

(c) The Court has expressly rejected the contention by Animals Australia that there was a statutory recognition of a public interest in animal welfare issues in the MI Act. The proceeding did not raise a public interest issue that was relevant to costs.

7 Animals Australia relied heavily on the costs ruling of Mortimer CJ in Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) ('ECCQ'),[3] in which the Full Court accepted there should be no order as to the costs of the appeals against the unsuccessful appellant. The appeals concerned judicial review of decisions by the first respondent under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in relation to coal mines operated by the second respondent. Costs orders made by the primary judge in relation to the initial trial, which provided for the appellant to pay half the costs of the first respondent and all of the costs of the second respondent, were not appealed. Mortimer CJ said, dealing with the appeal costs of the first respondent:

There is a public benefit, including to the Minister as repository of any powers under the scheme and as the Minister responsible for the administration of the scheme, from the Court's pronouncement on the construction and operation of the provision or provisions concerned, or from an analysis of the scheme as a whole or in part. Active participation means a Minister gains the benefit of advancing (and defending) the approach they consider is the correct one, and having that tested.[4]

Mortimer CJ said the first respondent now had the benefit of the Court's consideration of statutory provisions in issue in the appeals that had rarely been considered in the past. Mortimer CJ considered it was relevant that the primary judge's costs orders remained in effect and would compensate the respondents to that extent for the conduct of the trial. Her Honour did not consider it was fair in the circumstances of that case for a not-for-profit environmental charity, such as the appellant, to be exposed to two sets of costs where there was duplication in the arguments made by the respondents, and a costs order in favour of both would have a 'chilling effect' in the area of environmental litigation. Her Honour concluded it was relevant that the appellant's applications for judicial review had merit, and said:

Provided the litigation is conducted efficiently, responsibly and without attributes of vexatiousness or hopeless in terms of arguments, the role played in litigation under a legislative scheme such as the [Environment Protection and Biodiversity Conservation Act 1999 (Cth)] by organisations such as the appellant is in my view an important consideration for the exercise of the costs discretion at the appellate level in particular.[5]

8 Colvin and Horan JJ, agreeing that the appropriate orders were that the parties should bear their own costs of the appeals, reasoned:

[W]here the issue concerns the exercise of statutory power and raises matters of high public importance about which there is substantial public controversy that extends well beyond matters of local or even regional environmental concern and in respect of which it might be said there was reasonable merit then those aspects together may provide a principled basis for an order that each party bear its own costs on the basis that the circumstances are exceptional. This is especially so where the statutory regime invites the involvement of members of the public as part of the mechanism to advance the statutory purpose.[6]

Their Honours said another reason the costs order was appropriate was that the appeals succeeded on the basis of contentions advanced by the respondents that were not the focus of the proceeding before the primary judge.

9 For the following reasons I conclude that Animals Australia should pay PrimeSafe's costs of the proceeding.

10 First, Animals Australia has been wholly unsuccessful in the proceeding.

11 Second, I accept PrimeSafe's submission that the construction issues cannot be compartmentalised from the question of whether Animals Australia had a special interest in the subject matter of the litigation. Determination of the construction issue was relevant to understanding the subject matter of the proceeding. Further, standing was determined in the statutory context that applied.

12 Third, while PrimeSafe did not succeed on every point argued, it succeeded on the fundamental issue of whether standing was supported by the statutory context.

13 Fourth, there was no statutory invitation for Animals Australia, as a party concerned with the welfare of pigs, to bring the proceeding in order to agitate that issue. While there is undoubtedly a public interest in the welfare of animals in a general sense, in contrast to the relevant statutory context in ECCQ, the MI Act does not provide a statutory platform for a third party such as Animals Australia to bring proceedings in order to advance that public interest.[7] The extent to which the proceeding was in the 'public interest' was determined by the limited recognition in the MI Act of a public interest in the welfare of animals.

14 Fifth, while the proceeding raised complex issues, given that Animals Australia did not establish standing and would have failed on summary dismissal, it cannot be said there was reasonable merit in the proceeding.

15 Sixth, there were reasons justifying PrimeSafe taking an active role in the proceeding. Complex construction issue were raised by the case Animals Australia brought, both in respect of the MI Act and the Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS4696:2023) ('Australian Standard').[8] The outcome of the construction arguments and the proceeding as a whole had significant implications for the breadth of PrimeSafe's regulator role and for application of the Australian Standard to abattoirs. Animals Australia did not challenge PrimeSafe at any stage of the litigation on the basis that it was not an appropriate contradictor in relation to the construction issues raised by the proceeding in relation to the MI Act and the Australian Standard.

16 Seventh, if no costs order is made PrimeSafe would not be compensated at all in respect of the proceeding brought against it unsuccessfully by Animals Australia.

17 I recognise that PrimeSafe will gain some benefit from the consideration of the MI Act and the Australian Standard that has occurred in the proceeding. However, that matter is not sufficient to justify the costs order Animals Australia seeks.

18 The remaining question is whether there should be any reduction in the costs awarded to the defendants on the basis that they had a common interest in the proceeding. At the highest level of generality, Sinclair and PrimeSafe had a common interest in defending the proceeding, including on the issue of standing. However, the defendants each approached their defence of the claim made by Animals Australia appropriately having regard to their position in the proceeding. PrimeSafe focused on the construction issues and its role as regulator. Sinclair focused on the allegation that it was breaching a condition of its licence to operate the abattoir; whether Animals Australia had a special interest in that issue; and whether there was any real prospect of Animals Australia obtaining relief that would have the effect of establishing criminal conduct by Sinclair. The defendants appropriately avoided making overlapping submissions on particular issues. There was clearly a potential for conflict between the defendants in relation to the allegation that Sinclair was operating the abattoir in contravention of licence conditions imposed by PrimeSafe. It was not appropriate for Sinclair and PrimeSafe to have joint representation. In the circumstances of this case there is no justification for reducing the awarded costs to PrimeSafe.

19 I will order that Animals Australia pay PrimeSafe's costs of the proceeding.

[1] Animals Australia Federation v CA Sinclair Proprietary Limited [2025] VSC 735.

[2] Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) (2024) 425 ALR 224, 229-30 [26]-[28] (Mortimer CJ).

[7] Cf Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20; (2021) 286 FCR 160, 161-2 [7]-[9].

[8] Sinclair's licence is subject to a condition that it must conduct its operations and maintain the abattoir in accordance with the Australian Standard.