Tarkine National Coalition Incorporated v Minister for the Environment

REASONS FOR JUDGMENT 1 I gave judgment in this proceeding on 15 May 2014: see Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468. I dismissed the application and ordered that, if any party wished to submit that there should not be a normal costs order in favour of the first and second respondents, that party should file written submissions. Provision was made for other parties to respond to those submissions. 2 The second respondent filed written submissions in which it agreed that it would be appropriate for the Court to order that the applicant pay the first and second respondents' costs of the proceeding. It foreshadowed making an application for non-party costs orders against certain officers of the applicant or members of its governing committee who were responsible for the making of the decision to commence and prosecute the application. It accepted that, under the Federal Court Rules 2011(Cth), it could not pursue a non-party costs order without filing an interlocutory application supported by affidavit. 3 The first respondent agreed that the applicant should be required to pay the first and second respondents' costs but made no submissions relating to the foreshadowed application relating to non-party costs orders. 4 The third respondent made no submissions. 5 The applicant did not oppose the making of costs orders in favour of the first and second respondents but neither consented to nor opposed the making of orders which might facilitate the filing of the foreshadowed interlocutory application by the second respondent. It reserved its position in relation to any such application should it be made. 6 In its written submissions the second respondent referred to some matters which, if established, could support a finding that the litigation had been pursued for an ulterior purpose. It would also be necessary for the second respondent to establish that one or more of the persons against whom non-party costs orders were sought was a guiding mind responsible for the alleged malign purpose (if there was one). 7 The second respondent intimated that it would be in a position to file any interlocutory application and supporting affidavit by 16 June 2014. 8 In my view it is appropriate to grant leave to the second respondent to pursue its foreshadowed application should it be advised to do so. Having regard to the timing of the delivery of this judgment I propose to give the second respondent until 23 June 2014 to make any application for costs against a non-party. 9 In the meantime costs orders will be made in favour of the first and second respondents. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.