Case: Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411
Outcome: referred to
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] . 16 In addition, the Minister submits that Save the Ridge is authority for two relevant propositions. First, that a proceeding brought for reasons other than personal financial gain is not sufficient reason to depart from the usual order as to costs. Second, that the extended standing provisions of ss 478 and 488 of the EPBC Act do not alter the rules relating to payment of costs. Accordingly, the Minster submits that he should receive his costs of the litigation. 17 TWS submits that the Court should make no order as to costs. In the alternative, it contends the first respondent Minister should be entitled to 50% of his costs, and the second respondent Gunns should either not be entitled to its costs or, at most, a small proportion of its costs, significantly less that 50%. 31 The case is finely balanced. TWS points to a number of factors or special circumstances that support its contentions including: the protection of the environment; the proper administration of the EPBC Act; its altruistic motives in commencing the proceeding under the extended standing provisions of the EPBC Act; and the importance of not discouraging access to the courts. These considerations are all relevant. However, they could be common to many other proceedings challenging matters of public administration or matters concerning the protection of the environment. They are insufficient to wholly displace both respondents' legitimate expectations that, having enjoyed complete success, they would be awarded their costs. TWS's case was not in the nature of a test case nor did it raise especially difficult legal questions of general importance. The standing provisions of the EPBC Act do not alter the ambit of the discretion conferred by s 43 of the Federal Court Act even though s 487(3) of the EPBC Act specifically extends standing to organisations that are engaged in activities for, or whose object is, the protection or conservation of the environment: see, Save the Ridge at 415. In the context of encouraging access to the courts, it is equally valid to say that a respondent should not be discouraged from mounting its defence in an appropriate fashion. 32 Further, TWS's alternative submission is flawed in that it claims that Gunns had no reason to actively participate in the proceeding and therefore, should not be awarded its costs. Gunns was made a party to the proceeding on the application of TWS and had a clear interest in defending the circumstances under which it made the referral of the pulp mill proposal to the Minister. Gunns was entitled to defend its interests in the proceeding brought by TWS and did so in an appropriate manner. 33 For these reasons TWS should pay the costs of the respondents.