Save the Ridge Inc v Commonwealth of Australia

REASONS FOR JUDGMENT 1 This is an application for security for costs by the second respondent to an appeal which is due to come on, it may be assumed, in the May Full Court sittings. The appellant opposes that order on the footing that it has not been established that it is impecunious and in particular it has not been proved to be impecunious on the affidavit evidence. In my view the evidence on an application of this kind is not limited to affidavit evidence. I am satisfied having in mind the course of this matter, the decisions by Whitlam and Emmett JJ, and exhibit A that, in the absence of sworn evidence to the contrary, I can safely conclude that if the appellant loses the appeal there will be a real prospect that the costs of the respondents will not be recovered. Bearing in mind the width of the discretion I would not refuse an order on the basis put forward. 2 It is then put that I should give great weight to the public interest nature of this appeal and reference was made to the decisions both at first instance and on appeal in the Friends of Hinchinbrook litigation (Friends of Hinchinbrook Society Inc v Minister for Environment and Others (No 1) (1996) 69 FCR 1; Friends of Hinchinbrook Society Inc v Minister for Environment & Ors [1997] FCA 295). Counsel for the second respondent has submitted that the present case can be contrasted to that in Hinchinbrook, wherean application for security for costs was declined at first instance. In this matter, orders were made for security for costs at first instance (Save the Ridge Inc v Commonwealth of Australia & Australian Capital Territory [2004] FCA 1167) and it was thus submitted that there should be a similar order on appeal. 3 It seems to me that whatever arguments there may be concerning public interest litigation at first instance it will be rare that an unsuccessful applicant would be entitled to, in effect, a free appeal. There are in my view good reasons why at this point in litigation the public interest nature of the matter being pursued cannot outweigh the legitimate interests of the respondents so far as costs are concerned. I am therefore satisfied that an order for security ought be made. 4 That gives rise to a question of quantum. The parties have in the course of negotiation put differing amounts. The application on the part of the second respondent is for $18,000 and the other side have effectively offered $8,000 without prejudice. The costs of the motion also need to be considered. 5 For reasons which I disclosed during the course of argument, it is not reasonable that the appellant should run the risk of paying a full set of costs to each respondent in a case of this kind, particularly where events have moved on and it is clear that it is the actions of the Commonwealth which are primarily at issue. In saying that I recognise the very great practical and legal interest of the Australian Capital Territory in this litigation and I recognise that as a matter of common sense and prudence it will take every step to protect itself. 6 Taking all those things into consideration in my opinion the amount of security should be $10,000 and the costs of this motion should be costs in the appeal. The orders of the Court will be as follows.