Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2)

The Federal Court of Australia was asked to consider whether an organisation, Bat Advocacy NSW Inc, should be exempt from paying the legal costs of the Minister for Environment Protection, Heritage and the Arts in a case that the appellant claimed was public interest litigation. The appellant, a non-profit organisation dedicated to advocating for the protection of grey-headed flying foxes, argued that the proceedings were in the public interest and that the usual rules on costs should not apply. The court had to determine whether the case involved a novel question of general importance and whether there were special circumstances justifying a departure from the usual costs order.

The court held that merely pursuing litigation in the public interest was not sufficient to exempt an appellant from paying the costs of the respondents. The court emphasised that there must be special circumstances to justify the exercise of discretion against making the usual costs order. The court found that the appellant had not provided sufficient evidence to demonstrate that the case involved a novel question of general importance or that there were special circumstances warranting a departure from the usual costs order. The court also noted that the appellant's non-profit status and lack of financial interest were relevant but did not, by themselves, constitute sufficient reason to depart from the ordinary rule on costs.

The court concluded that the appellant should pay the costs of the respondents, as there were no special circumstances that justified a departure from the usual order that costs should follow the event. The court rejected the argument that public interest litigation alone granted immunity from costs, reaffirming that espousing the public interest was not a sufficient ground for such immunity.

The orders of the court were that Bat Advocacy NSW Inc should pay the costs of the respondents, the Minister for Environment Protection, Heritage and the Arts.