Save Beeliar Wetlands (Inc) v Commissioner of Main Roads

1. The applicant is to pay the costs of the first and third respondents to be taxed, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SIOPIS J: 1 The first and third respondents seek orders that the applicant, Save Beeliar Wetlands (Inc), pay their costs in resisting the applicant's application for an interlocutory injunction to restrain the Commissioner of Main Roads from recommencing work in respect of the construction of the extension to the Roe Highway until trial or further order. The second respondent filed a submitting notice and did not take part in this proceeding. 2 On 9 January 2017, the Court dismissed the application (Save Beeliar Wetlands (Inc) v Commissioner of Main Roads [2017] FCA 4 (Save Beeliar Wetlands (No1)). 3 The question of costs is within the discretion of the Court (s 43(2) of the Federal Court of Australia Act 1976 (Cth)). The usual order for costs following a hearing is that costs follow the event. The object of an award of costs is to compensate the successful party for the costs and expenses incurred in engaging in the litigation. 4 In Oshlack v Richmond River Council (1998) 193 CLR 72 at [67], McHugh J explained the rationale as follows: The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. (Footnote omitted.) 5 In relation to an application for an interlocutory injunction, however, there will be occasions where, in the exercise of its discretion, a court may not order that the unsuccessful party pay the costs of the interlocutory injunction application. The court may, instead, order that costs be in the cause, or that costs be reserved. Such an order may, for example, be made where, although the court has found that there is a serious issue to be tried, the court is of the view that the justice of the case does not warrant making an order that the unsuccessful party pay the costs of the interlocutory injunction application. In other cases, however, particularly where a party has failed to establish that there is a serious question to be tried, the court may in the exercise of its discretion come to the view that the justice of the case is better served by making an order that the unsuccessful party pay the costs of the interlocutory injunction application. (See, for example, Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC 57 (S) at [6]-[7]). 6 In this case, the applicant failed to establish that there was a serious question to be tried and also failed to persuade the Court that the balance of convenience favoured the grant of an interlocutory injunction restraining the Commissioner of Main Roads from recommencing work on the Roe Highway extension. 7 However, the applicant has contended that the appropriate order is that each party bear its own costs of the interlocutory injunction application. The applicant contended that an exception to the general rule on costs should apply because its application fell within what is sometimes referred to as "public interest litigation". 8 More specifically, the applicant contended that the litigation benefited the public in the sense that the Court pronounced on the proper construction of condition 7 of the environmental approval. The applicant contended that prior to the litigation, the construction of condition 7 was unclear and the Court had, at least, on an interlocutory basis, clarified the proper construction of the condition. 9 In support of its contention, the applicant referred to the following observations in The State of Western Australia v Collard [2015] WASCA 86 at [38]: There are cases where the court has departed from the usual order as to costs in litigation which has involved the proper construction of statutory provisions of significant public import, particularly (but not exclusively) in relation to the protection of the environment, on the basis that the proceedings were "public interest" litigation. 10 Secondly, the applicant contended that its case was directed at compliance with an important environmental condition concerning the preservation of the black cockatoo habitat, which, said the applicant, was a matter of public interest. 11 Thirdly, the applicant said that it did not have a personal interest in the litigation. 12 All of the parties referred to the case of Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S) (Jacob). That was not a case about the award of costs in respect of an application for an interlocutory injunction. Rather, the parties referred to that case because the Court of Appeal of the Supreme Court of Western Australia discussed the appropriate principles to apply in relation to awarding costs in "public interest litigation". 13 In Jacob, the applicant challenged, in the Supreme Court of Western Australia, the validity of an Environmental Protection Authority assessment report in respect of the proposed extension to the Roe Highway and the decision of the Western Australian Minister for Environment to permit the project to proceed. The applicant was successful in its challenge at first instance, but was an unsuccessful respondent to an appeal brought by the Commissioner of Main Roads and others. 14 The Court of Appeal of the Supreme Court of Western Australia, by majority (Buss JA (as his Honour then was) and Newnes JA), rejected the applicant's contention that the litigation which it had brought was to be characterised as "public interest litigation", and that it should, therefore, not pay the successful appellants' costs. The majority held that the applicant should pay the appellant's costs of the appeal and the proceedings at first instance. 15 The majority recognised that where an element of public benefit was derived from the conduct of "public interest litigation", a court may, in some circumstances, after having carried out a balancing exercise, depart from the usual order for costs. The majority observed that each case depended upon its own facts and that the exceptional nature of an outcome whereby the successful party would be denied its costs, had been repeatedly emphasised (at [40]). The majority referred to a number of well-known authorities on the question of the award of costs in so-called "public interest litigation" (at [41]-[48]), and concluded that the circumstances of the litigation in question were such as not to justify the departure from the usual rule as to costs. 16 In my view, in the circumstances of this case, also, the appropriate order is that the applicant should pay the costs of the first and third respondents. 17 I say so for the following reasons. 18 First, it is the case that a factor which, together with other factors, will weigh with a court in deciding to depart from the usual order for costs is whether the resolution of the claim brought by the unsuccessful party, has established a legal principle, or otherwise clarified the law, in a manner which has importance for the wider community. The courts have shown some flexibility in determining the nature of the legal principles or points of law or statutory construction which will be characterised as falling in to that category. In this regard, it is pertinent to observe that it is a characteristic of the common law that the resolution of a novel point will, by reason of the operation of the doctrine of precedent, establish the law in relation to that point; and it is not the resolution of every novel point of law or statutory construction, which will attract the "public benefit" characterisation. 19 In my view, however, the observations of the Court in Save Beeliar Wetlands (No 1) as to the proper construction of condition 7, do not fall within the "public benefit" characterisation. 20 This is because the Court's observations were directed only to the construction of a particular condition in a particular approval. In other words, the Court's determination does not have wider application beyond this particular approval. It does not constitute the determination of the construction of a contentious and/or important statutory provision or the resolution of a novel or disputed point of law of wider public importance. Also, the judgment is no more than interlocutory; and, therefore, does not resolve any points other than to find that the construction of condition 7 advanced by the applicant, did not, in light of the ramifications of granting the interlocutory injunction sought by the applicant, amount to a serious question to be tried. 21 In further support of the applicant's contention that the proceeding had a "public benefit" characterisation, the applicant contended that the third respondent had advanced a different construction of condition 7, to that advanced by the first respondent. This circumstance is, in my view, of little moment. Although there were differences in the construction which the respective respondents advanced, each rejected the contention put forward by the applicant and contended that the applicant's construction did not give rise to a serious question to be tried, and each of the respondents was obliged to expend public monies in vindicating that position. 22 Secondly, I accept that there is a public interest in the establishment of a black cockatoo habitat in accordance with the conditions of the environmental approval. However, in my view, that consideration must be considered in the context of the nature of the interlocutory injunction sought by the applicant. The conditions in the environmental approval contemplate the establishment and management of an offset location for a black cockatoo habitat over a period of five years. The environmental approval contemplates that this process was to take place in conjunction with the undertaking of work on the project. However, in circumstances where the applicant did not lead evidence to establish that no land existed which could constitute an appropriate offset property or properties, the applicant sought an interlocutory injunction to halt work on the project. In other words, the relief sought by the applicant was disproportionate to the public interest it espoused. 23 I have placed little weight on the fact that the applicant has said that it did not have a personal interest in the litigation. Where a person or party commences litigation against another party, the first party will be aware that, in defending the litigation it has commenced, the responding party will be required to incur costs. As the majority said in Jacob at [54]: Individuals or organisations, however well-intentioned, who embark upon litigation to pursue an objective of interest or concern to them in relation to the environment, or any other matter affecting the public more generally, cannot expect that, if unsuccessful, they will ordinarily be relieved of the risks as to costs involved in litigation. 24 As I have mentioned, there will be cases when a party or persons acting to ensure the public interest is served by the enforcement of the law, will bring a claim of sufficient merit and/or one which has sufficient public benefit, to warrant a departure from the general rule. However, this case was a case which did not have sufficient merit and did not result in sufficient public benefit to warrant a departure from the general rule. 25 Accordingly, the applicant should pay the first and third respondents' costs to be taxed, if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.