Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: applied
More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell &amp; Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. 8 Further, in Oshlack McHugh J states at 97 that "the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour". Gunns' submissions point out that TWS was wholly unsuccessful on all points raised under ss 5 and 6 of the AD(JR) Act and that it cannot claim to have been successful or partially successful on any point raised at trial. Further, Gunns states that it expended considerable funds in defence of its legitimate commercial interests and, as a result, it is appropriate to the make the usual order as to costs, namely, that costs follow the event and the successful party have its costs paid by the unsuccessful party. 9 Gunns submits that there are no recognised exceptions to the usual order that costs follow the event that would apply to this case. Gunns submits there are no special circumstances or factors connected with the case that would justify a departure from the usual order as to costs, such as, disentitling conduct, or "misconduct relating to the litigation, or the circumstances leading up to the litigation": see, Oshlack per McHugh J at 97. Gunns claims that it had no choice but to defend the litigation as it constituted a substantial attack on its legal interests under the EPBC Act and on its commercial interests as the designated proponent of the pulp mill proposal. Absent any recognised exceptions to the general rule, Gunns submits, costs should follow the event. 10 Furthermore, Gunns argues that the concept of 'public interest litigation' is not a recognised exception to the rule that costs follow the event. In support of that proposition, Gunns relies on Oshlack where Brennan CJ said at 75 that the public interest nature of the proceeding "does not provide a sufficient reason by itself for refusing the successful respondent its costs", and McHugh J at 91 characterised the public interest as "irrelevant" to the question of costs. In particular, Gaudron and Gummow JJ approved of the concept that "something more" than the characterisation of litigation as "public interest litigation" is needed before a successful respondent is denied its costs: see, Oshlack at 91. Importantly, this is so because the concept of 'public interest litigation' is "a 'nebulous concept' unless given... further content of a legally normative nature": see, Oshalck per Gaudron and Gummow JJ at 84. 11 In any event, Gunns submits that the current proceeding was not brought in the public interest. As far as the motives of the applicant in instituting the proceeding against the first respondent, Gunns claims that TWS litigated as part of a deliberate campaign to stop development of the pulp mill. Gunns says TWS did not bring the proceeding to test any question of law concerning the administration of the EPBC Act or for any reasons of broader public interest. In this case, Gunns claims, the litigation was brought as an attack on its legitimate commercial interests. 15 There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] . 19 The breadth of the discretion to award costs against a successful defendant is explored in the case of Oshlack where Gaudron and Gummow JJ (Kirby J agreeing) held at 91 that the trial judge's discretion to award costs under s 69(2) of the Land and Environment Court Act 1979 (NSW) had not miscarried when he took into consideration the "special circumstances" of the case including the motivation of the litigant, the public interest and notoriety generated by the case, and the difficult points of law raised by the case. That case stands for the principle that the Court's discretion is broad and it is necessary for the trial judge to weigh any special circumstances, including public interest considerations, that are connected with or leading up to the litigation, in determining whether to deny a wholly successful respondent its costs. 20 For TWS, the overriding public interest is said to be twofold. First, the protection of the environment generally and second, the proper administration of justice, that is, the public interest that decision making under the EPBC Act is lawfully undertaken. 21 Furthermore, TWS submits that the present case reveals additional factors that would warrant a departure from the usual order as to costs. They are: &#8226; the statutory nature of the decisions made by the Minister including the complex environmental, factual and legal setting in which the decisions were made; &#8226; the identity of the applicant and the nature of the challenge brought by TWS concerning the issues raised and the merits of the argument; and &#8226; the importance of access to the courts to enable judicial supervision of important environmental issues. 22 The first point raises arguments in favour of the importance of the proper administration of justice and of the EPBC Act. The EPBC Act contains important matters relating to the conservation and management of the Australian environment including matters concerning Australia's international obligations. These submissions point out that the Gunns pulp mill is a massive undertaking with a significant impact on the environment and that the approval or otherwise of the pulp mill remains a matter of great controversy both within and outside Tasmania. 23 In regard to the second point, TWS submits that it has brought the proceeding solely in the public interest and not for a private or personal gain. TWS is a community-based environmental advocacy organisation whose mission is to protect, promote and restore wilderness and natural processes across Australia for the survival and ongoing evolution of life on Earth: The Wilderness Society (The Wilderness Society, Hobart) http://www.wilderness.org.au/ viewed 20 October 2007. The extended standing provisions of s 487 of the EPBC Act are said to allow for such public interest litigation by TWS. 24 On the third point, TWS submits that encouraging access to the courts is a legitimate reason for departing from the usual orders as to costs. TWS submits that a costs order in its favour will preserve the role of public interest litigants in the Federal Court, thereby allowing for decisions made by the Minister under the EPBC Act to be scrutinised in the public interest.