Later in their judgment their Honours, having commented on the submissions that this was public interest litigation, observed at 84:
'The true issue here is not whether this was "public interest litigation". Rather, … the question is whether the subject matter, the scope and purpose of s 69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be "definitely extraneous to any objects the legislature could have had in view" in enacting s 69.'
62 This consideration makes Oshlack a very differentcase from the present. The statutory extension of standing in s 123(1) of the EPA Act, with its implied invitation to the public, suggested that the discretion as to the award of costs given in s 69 of the Court Act was not to be construed narrowly. Kirby J expressed the position as follows at 122:
'Given that statutory context and the clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of Parliament's particular purposes.'
63 I accept that proceedings cannot be characterised as having been brought in the public interest merely because they involve 'elements of public law or the judicial review of the exercise of executive power'; De Silva v Minister for Immigration and Multicultural Affairs [1998] FCA 311 at [8] per Merkel J. As his Honour pointed out, those proceedings had been brought to enable the applicants to remain in Australia rather than for the benefit of the public or to enforce a public duty.
64 The application in Vadarlis concerned a group of non-citizens who were said to be detained by the Commonwealth on the Norwegian vessel, MV Tampa, off the coast of Christmas Island. The Victorian Council for Civil Liberties Inc and Mr Vadarlis, a Melbourne solicitor, commenced proceedings for orders in the nature of habeas corpus and mandamus to compel their release and delivery into Australia. While the applicants were successful before the primary judge, they were not successful either before the Full Court or on an application to the High Court for special leave to appeal. The issue of costs came back to the Full Court, which had no difficulty in identifying a public interest issue in the litigation and held that, despite the applicants' lack of success, the parties should bear their own costs of the appeal and of the proceedings before the primary judge. In their joint judgment at [29] Black CJ and French J made some comments that resonate with the present circumstances:
'This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J.'
65 The respondent suggests that, there is in the present context, 'an inherent and perhaps insurmountable difficulty in identifying the public interest'. With respect, I do not share that difficulty.
66 The respondent's scepticism appears to spring, not from any denial of the importance to the public of the regulation of air safety in Australia, but from its view that, in commencing the proceedings, the applicant was motivated by personal and private rather than public interest; see, for example, Hollier v Australian Maritime Safety Authority (No. 2) [1998] FCA 975 in which the appellant sought to obtain a private benefit. Although the applicant was cross examined about the additional fees that he might have to pay as a private pilot under the proposed changes, it was not seriously suggested that his interest was financial. Rather it was suggested that it was his emotional investment in and commitment to reforms that he had played a major part in bringing about that led him to oppose so vigorously their partial rollback.
67 Interestingly, however, the very same factors that the respondent relies on to support its submission also are relied upon by the applicant to show that he had no personal or private interest in the litigation but was, by virtue of his training and experience, one of the few, if not the only person in a position to challenge the proposed changes in the public interest. The factors, as identified in the written submissions of the applicant, are:
'Mr Smith was in a singularly unique position to bring these proceedings on matters involving such important issues of public interest and concern because he:
· has held a private pilot licence for 30 years;
· until recently, he was a member of the National Airspace System Project Advisory Group (NASPAG) and has been a member since that group was created in April 2004;
· is a former member of the Special Aviation Reform Group for the period February 2002 to April 2004, the purpose of which was to recommend a preferred plan for the reform of Australia's low-level airspace. That group was responsible for recommending to the Government that it implement the NAS proposals. In announcing the Government's acceptance of that recommendation, the Minister in his press release dated 13 May 2002 expressly paid tribute to Mr Smith for developing the proposals;
· is former Chairman of the Civil Aviation Authority from February 1990 to February 1992 and former Chairman of the Civil Aviation Safety Authority from December 1997 to March 1999;
· is a person who has made numerous submissions to both Airservices and the Minister with responsibility for the administration of the ASA prior to the making of the Decision (and afterwards), which submissions were opposed to the Decision being made.'
68 The applicant's submissions added that it would be difficult to think of a person other than the applicant being able to challenge the Decision given the undoubted complexity of the issues involved. The respondent's view was that given the applicant's intense involvement with the NAS reforms it is not surprising that he reacted negatively to the proposal to reconsider the introduction of Stage 2(b).
69 The conundrum illustrated by these opposing views is that it is likely that the only person who could with any credibility or sense challenge the proposed Option 3 would be a person with extensive experience in air safety and who would be likely to have deeply held convictions on the matter. Such a person will always have the type of private interest to which the respondent refers. The respondent, in asserting the applicant's private interest, commented in oral submissions: 'It's not as if he's coming to this as an innocent bystander'. My point is that an innocent bystander would be in no position to make any sensible comment on the matter. The applicant is no ordinary bystander, officious or otherwise; he is by virtue of his expertise and experience, in a special position in relation to air safety. For these reasons I am satisfied that there was a public interest element in these proceedings.
70 In considering futility and public interest and the cases relevant to those issues, I have had occasion to express an opinion as to whether the parties have acted reasonably in relation to specific aspects of the proceedings and the surrounding circumstances. In summary, I find that both parties have acted reasonably in relation to these proceedings.
71 In all the circumstances there is nothing to suggest to me that the applicant acted unreasonably in commencing the proceedings. The parties seem to have acted with a degree of co-operation and expedition. It must be remembered that it was only a little over a month from the time the proceedings were commenced on 16 September 2004 until the applicant sought leave to discontinue on 22 October. I have no doubt that strong feelings have been involved on both sides of this dispute; the letter from the CEO of CASA quoted at [35] makes this point. Mr Smith has been a persistent and probably irritating advocate of his views and may well have expressed them robustly and not very tactfully. Nevertheless I find that the issue in dispute has immense public significance and, for reasons already mentioned, that Mr Smith was peculiarly, if not uniquely, positioned to express an opinion.
72 I do not see any special circumstances that enable me to find that there should be an award of costs in the respondent's favour. None of the issues I have considered is determinative but taking all of the circumstances into account, I am of the opinion that there should be no order as to costs in this matter with the intent that the parties should bear their own costs.
I certify that the preceding seventy two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.