Australian Conservation Foundation Incorporated v Minister for the Environment (No 2)

The Australian Conservation Foundation Incorporated (ACF) brought a challenge to the Minister for the Environment’s decision to approve a coal mining project under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The matter was heard in the Federal Court of Australia, where the ACF sought a judicial review of the Minister’s decision. The ACF argued that the Minister had failed to properly consider the potential impacts of the project on the Great Barrier Reef. The Minister, in turn, defended the decision, arguing that all relevant environmental factors had been considered. Adani, the proponent of the coal mining project, also participated in the proceedings, submitting extensive written and oral arguments.

The primary legal issue before the court was whether the ACF, as the unsuccessful party in the judicial review challenge, should bear a proportion of the costs incurred by the Minister and Adani. The court considered the principles governing costs in public interest litigation, particularly in environmental law contexts. Key considerations included whether the litigation raised novel questions of public importance, the extent to which the ACF had succeeded in highlighting public concerns, and the degree to which Adani had over-participated in the proceedings. The court also assessed whether the ACF’s challenge was arguable and whether it had resolved significant issues about important legislation.

The court concluded that the ACF should pay a percentage of the costs of both the Minister and Adani. The decision noted that while the litigation was of public interest, this alone did not justify a departure from the usual rule that costs follow the event. The court found that the ACF's litigation had succeeded in bringing increased media attention and donations, indicating a benefit to the ACF. Additionally, the court determined that Adani's extensive participation in the proceedings, despite the Minister already being represented, warranted a reduction in the costs recoverable by Adani. Consequently, the ACF was ordered to pay 70 per cent of the Minister's costs and 40 per cent of Adani's costs. The reasoning underscores the court’s discretion to adjust costs based on the unique circumstances of the case, including the extent of participation by the parties involved.

ORDERS:
The Federal Court ordered that the applicant pay 70 per cent of the costs of the first respondent and 40 per cent of the costs of the second respondent, as agreed or assessed.