The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources

REASONS FOR JUDGMENT 1 The Investors for the Future of Tasmania Inc. (IFT) applied under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) and s 39B of the Judiciary Act 1903 (Cth), seeking judicial review of two administrative decisions made by the first respondent, the then Minister for the Environment and Water Resources (Minister), pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Those decisions relate to the construction and operation of a pulp mill at Bell Bay, Tasmania. The second respondent, Gunns Limited (Gunns), was joined to the proceeding on it own motion under s 12 of the AD(JR) Act by order of this Court on 21 June 2007, by reason of its interest in the construction and operation of a pulp mill, the subject of the Minister's two decisions. 2 The Court published its judgment in the substantive proceeding on 9 August 2007, dismissing the application wholly in favour of the first and second respondents: see, The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179. In that judgment, orders as to costs were reserved and an order made that the parties file and serve written submissions on the question of costs within 21 days of the primary judgment. Accordingly, written submissions were received from the parties under an agreed extended timetable. I now set out my reasons regarding the question of costs. 3 The submissions on costs from the applicant and the respondents overlap substantially with the submissions on costs relied on in The Wilderness Society proceeding, as the proceedings were heard together and evidence in one was evidence in the other: see, The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863 (TWS proceeding). These reasons should be read in conjunction with the reasons published in the TWS proceeding today. 4 IFT submits that the Court should make no order as to costs. Where IFT submits that no order should be made in favour of the first respondent, I reject that submission and adopt the reasons contained in the TWS proceeding. 5 There is a difference between the submissions of the parties in this matter and those in the TWS proceeding which emphasise the fact that Gunns was joined as a party to the proceeding on its own application over the opposition of IFT. IFT made specific submissions seeking an order that Gunns would not be entitled to its costs if it was joined to the proceeding as an additional respondent. In making orders joining Gunns as an additional respondent, the Court reserved its determination on the question of costs. 6 IFT contends that the fact that Gunns was joined to the proceeding on its own application should be taken into account when exercising the Court's discretion to award costs. IFT relies on the case of Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No. 1) (1996) 69 FCR 1 for the proposition that it is appropriate to deny Gunns its costs in circumstances where it was joined to the proceeding as an interested person on its own application. In Friends of Hinchinbrook, Branson J imposed a condition on the joinder that the additional respondent not seek its costs in the proceeding. That decision was upheld on appeal: Friends of Hinchinbrook Society Inc. v The Minister for Environment (unreported, Northrop, Burchett and Hill JJ, 27 May 1997). 7 IFT submits that Gunns did not actively participate in the proceeding. It did not call any relevant evidence to assist the Court in its determination of the matters in dispute and could not have done so. IFT asserted that two affidavits that were filed in the proceeding by Gunns were at best peripheral evidence to the matters at hand. In circumstances where Gunns was joined on its own application and did not substantially assist the Court with its determinations by calling relevant evidence, IFT submits, Gunns should not receive its costs. 8 Gunns submits that it had a legitimate interest in the proceeding. Indeed, this was the basis on which it was joined as a party. Further, Gunns submits that by seeking to be joined to the proceeding it was protecting its legal and commercial interests in the assessment approach decision made by the Minister. As such, Gunns submits that the proceeding involved a direct attack by IFT on its legitimate legal and commercial interests which it was entitled to defend. Having done so, it is entitled to its costs, so it is contended. 9 In Friends of Hinchinbrook at 13, Branson J did not view the State of Queensland as a necessary party to the proceeding. In this matter Gunns was a necessary party to the proceeding. Its rights and interests were capable of being directly affected by any order made in the proceeding. It should have been joined at the outset: see, News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525. It is irrelevant that IFT did not seek any relief against Gunns. The challenge to the Minister's decisions involved IFT seeking relief against him and not Gunns. Even so, Gunns' direct interest in the outcome of the challenge was greater than any direct interest apart from that of the Minister. 10 Although Gunns should have its costs of the proceeding, when those costs are taxed, or agreed, special care should be taken to ensure that there is no double dipping in respect of costs ordered in the TWS matter. The same consideration applies equally to the Minister's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.