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[2004] FCA 1289
Federal Court of Australia
2004-09-16
Whitlam J, Gyles J, Emmett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 I have before me an application for leave to appeal from orders made by Whitlam J on 8 September requiring the applicant in the proceeding to give security for costs of the respondents. The respondents are the Commonwealth of Australia and the Australian Capital Territory. The decision whether or not to order the provision of security for costs and the quantum of any such security involves the exercise of a discretion by the primary judge in a matter of practice and procedure. 2 It follows, therefore, that leave to appeal would ordinarily be granted only where the decision is attended by sufficient doubt to justify its being considered by a Full Court and where substantial injustice would result if leave were refused, supposing the decision to be wrong. In the substantive proceeding, the applicant, Save the Ridge Inc, seeks orders in effect restraining the carrying out of works in the Australian Capital Territory on the construction of an arterial road known as Gungahlin Drive Extension. 3 Save the Ridge Inc originally sought interlocutory relief. That was refused. However, a Full Court concluded that there was at least a serious question to be tried, but refused interlocutory relief on discretionary grounds. Gyles J made an order under O 29 of the Federal Court Rules, the effect of which is that two questions raised by the substantive proceeding are to be heard separately and prior to the determination of other issues in the proceeding. 4 The proceeding raises the effect of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Section 28(1) provides that: 'The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.' 5 The applicant, Save the Ridge Inc, sets out in its application its grounds in some detail. Specifically it alleges in par 3 that the National Capital Authority, an emanation of the Commonwealth, has taken within Australia activities causing the planning, construction and operation of the Gungahlin Drive Extension. 6 Five particulars are set out involving the preparation of proposed amendments to the National Capital Plan and the submission of those amendments to the relevant Minister pursuant to the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). Paragraph 7 of the amended application then refers to three executive acts being amendment 41 to the National Capital Plan, amendment 46 to the National Capital Plan and a series of works approvals purportedly granted by the National Capital Authority pursuant to s 12 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). 7 The questions to be determined separately are whether the activities identified in par 3 of the amended application constitute action for the purposes of s 28(1) and whether any of the activities identified in par 7 of the amended application constitutes an action for the purposes of s 28(1). Those questions are essentially legal questions and no complaint has been made about the making of an order under O 29, the effect of which is to defer the question of whether any such action, if it is action, has, will have or is likely to have a significant impact on the environment. That question would involve considerable evidence and hearing time, whereas the legal questions are capable of being resolved in a reasonably short time. 8 The proposed grounds of appeal from the orders of Whitlam J, assuming leave were granted, may be summarised as follows: (1) His Honour erred by treating an order for security for costs as necessarily flowing from a finding that the costs were unlikely to be paid and therefore, failed to exercise the discretion conferred and failed to consider relevant considerations as follows: (a) the urgency of the matter and the likely delay to the hearing which is fixed for 27 September; (b) the 'public interest' nature of the litigation; (c) the apparent intention of the Parliament that legitimate organisations concerned with the environment, such as Save the Ridge Inc should be able to sue to enforce the Environment Protection and Biodiversity Conservation Act 1999; (d) the extent of the risk that Save the Ridge Inc would be unable to meet the costs of the Commonwealth and of the Territory if ordered to do so. (2) His Honour erred by making findings as to the quantum of the likely costs. (3) His Honour erred by making findings as to the ability of Save the Ridge Inc to meet a costs order. 9 In essence the first ground is that his Honour, on a fair reading of his reasons for making the relevant orders, did no more than conclude that there was some likelihood that Save the Ridge Inc would not be able to meet an order for costs and failed to have regard to the considerations referred to. I do not consider that on a fair reading of his Honour's reasons that complaint is likely to be made out. His Honour referred specifically to the decision of Hely J in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 34 ASCR 673 at 678 to 681. Specifically his Honour referred to pp 679 and 680 dealing with legislation of the nature of the Environment Protection and Biodiversity Conservation Act 1999. 10 The proposition that has been advanced by Save the Ridge Inc is that where legislation, such as the Environment Protection and Biodiversity Conservation Act recognises that public interest bodies have standing to challenge decisions that might adversely affect the environment, courts should take that circumstance into account in deciding whether or not to require security for costs in a proceeding in which the moving party has no specific interest in the outcome, other than the interest of the community. 11 Thus Hely J observed at [35]: 'In the exercise of the discretion whether or not to order the provision of security, some weight is to be given to the legislative desire to provide an effective mechanism whereby the question of whether conduct contravenes the legislation that is relevant can be agitated before a court: Equity Access Ltd v Westpac Banking Corp (1989) ATPR 40-972 at 50,637. The public interest, however, is simply one of many factors to be weighed in the balance. The legislative context is different from that which was the subject of consideration by Branson J in Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 21-3 where the legislative scheme was such that legitimate organisations concerned with world heritage properties should be able to agitate issues arising under the World Heritage Properties Conservation Act 1983 (Cth) and where the defendant in the proceedings was the minister charged with the administration of that Act.' 12 Whitlam J observed that his attention was directed specifically to Div 14 and Div 16 of the Act. Thus s 475, which is within Div 14, provides for the commencement of proceedings by the Minister or an interested person. 13 Section 475(7) provides that: 'For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met:
(a) the organisation's interests have been, are or would be affected by the conduct or proposed conduct;
(b) if the application relates to conduct - at any time during the 2 years immediately before the conduct:
(i) the organisation's objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment;
(c) if the application relates to proposed conduct - at any time during the 2 years immediately before the making of the application:
(i) the organisation's objects or purposes included the protection or conservation of, or research into, the environment;…'
14 It is common ground that Save the Ridge Inc satisfies those conditions and Whitlam J so found. Section 478, which is within Div 14, also provides that: 'The Federal Court is not to require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction.' 15 Section 487, which is within Div 16, extends the standing necessary for bringing a proceeding under the Administrative Decisions (Judicial Review) Act 1977. Thus, under s 487(3): 'An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:
(b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and
(c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.' 16 Thus, it is a relevant consideration in determining whether or not to make an order for security for costs in proceedings involving alleged threats to the environment to have regard to the fact that the moving party is, in a sense, representing the community. On the other hand, that fact of itself is not sufficient to excuse a moving party from being ordered to provide security for costs. 17 It may be that his Honour in his reasons, which were given only five days after argument, did not deal in complete detail with all of the submissions that were directed to the question on behalf of Save the Ridge Inc. However, I consider that it is clear enough from his Honour's reasons that his Honour did have regard to the consideration that Save the Ridge Inc is an organisation recognised by the legislation as having special standing to bring this proceeding in the community interest. 18 Further, it is clear that his Honour had regard to the fact that the proceeding was fixed for hearing in the near future. His Honour said expressly that he was conscious that it was only a short time before the hearing date. He observed, however, that there was no evidence that the making of an order for security would have the effect of bringing the proceeding to an end. His Honour recorded that counsel for Save the Ridge Inc did not go beyond submitting that any delay in arranging security might imperil the hearing dates. 19 Thus it was not suggested that the making of an order for security would stifle the proceeding altogether, rather than merely delay it for some unspecified time. That is a matter to which I shall return briefly in dealing with the question of whether there would be substantial injustice if leave were to be refused. The final matter dealt with as indicating that his Honour failed to have regard to relevant considerations, is a reference to the extent of the risk that Save the Ridge Inc would not be able to meet an order for costs. That is tied up with the third ground concerning his Honour's findings as to the ability of Save the Ridge Inc to meet a costs order. 20 His Honour observed that the only evidence as to the financial state of Save the Ridge Inc consisted of accounts made available by it. The accounts, consisting of a statement of income and expenditure for each of the years 2001/2002, 2002/2003 and 2003/2004 disclose that as at the end of the last year, Save the Ridge Inc had cash at bank in the sum of $7536. 21 The accounts also showed that it had received income consisting substantially of membership donations and sales and an anonymous special donation together totalling some $37,500. That is in stark contrast to the previous two years where the total income had been $2430 and $9116 in respect of the 2001/2002 and 2002/2003 years respectively. There was no other evidence to indicate the likelihood of the 2003/2004 year being repeated so far as memberships, donations and sales were concerned or anonymous special donations. It was open to his Honour to conclude, as his Honour did, that in the normal course, the sum of $7566 is not likely to have been augmented greatly by donations over the past two months. 22 His Honour concluded that Save the Ridge Inc may be regarded as impecunious. The complaint appears to be that his Honour failed to take account of the fact that there may well be substantial donations in the future. There was, however, no evidence as to that matter and the conclusion that his Honour reached was, it seems to me, clearly open to him on the evidence before him. I do not consider that there is any basis for concluding that his Honour erred by making the findings that he did. Nor do I consider that there is any basis for complaining that his Honour failed to take into account the extent of the risk that Save the Ridge Inc would be unable to meet an order for costs having regard to that finding. 23 The final matter of complaint concerns the findings made by his Honour as to the quantum of the likely costs that would be ordered. His Honour had before him affidavits that were read without objection by experienced solicitors acting on behalf of the Commonwealth and the Territory. While those solicitors were cross examined to the effect that they had overestimated the amount of costs likely to be allowed on party-party taxation, and as to other matters, neither witness agreed with the propositions that were put to them. Save the Ridge Inc did not adduce any evidence to the contrary. 24 In assessing quantum of an order for costs, a broad brush approach needs to be taken. It would be counter productive if too much time were spent on requiring detailed proof of likely costs or hypothetical taxation of bills in advance. That is not to say that security should be ordered without proper evidence. It is necessary for a court to have evidence from an experienced practitioner as to the costs that are likely to be incurred and as to the amount of those costs that are likely to be allowed on taxation. His Honour had that evidence and there was no basis in my view for concluding that his Honour made any error in the findings that were made. 25 It follows from what I have said that I am not persuaded that there is any significant doubt at all as to the correctness of the decision made by his Honour. Further, I am not persuaded that there would be any substantial injustice if leave were refused, assuming that his Honour was wrong in the orders that were made. The only injustice that is advanced is the possibility that the hearing date might be lost because Save the Ridge Inc will not be able to raise the sum of $50,000 security by the date specified by Whitlam J. 26 There is no evidence as to how long it would take Save the Ridge Inc to raise that money. It might have been open, for example, to adduce evidence that by the time the security were raised, the proceedings would have ceased to have any utility because the work sought to be restrained would have already been carried out. There is, however, no suggestion that that is the case. The worst that seems to be suggested, both to Whitlam J and on the hearing of this application for leave is that the hearing date would be lost. I do not consider that that of itself is an injustice and a fortiori, it is not a substantial injustice. 27 It follows in my view that the application for leave should be refused. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Solicitor for the Applicant: Porters Lawyers
Solicitor for the First Respondent: Australian Government Solicitor
Solicitor for the Second Respondent: ACT Government Solicitor
Date of Hearing: 16 September 2004
Date of Judgment: 16 September 2004
Save the Ridge Inc
Commonwealth of Australia
(1996) 69 FCR 1