Bob Brown Foundation Inc v Commonwealth of Australia (No 2)

The Bob Brown Foundation Inc brought proceedings against the Commonwealth of Australia, raising a separate question concerning the interpretation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The case was heard in the Federal Court of Australia. The Foundation sought a declaration that certain actions taken by the Commonwealth were unlawful, and the Commonwealth sought a declaration that its actions were lawful. The court was required to determine the proper interpretation of the Act and whether the Commonwealth's actions were consistent with it.

The legal issues before the court included the interpretation of the Act, the scope of the court's discretion in awarding costs in public interest litigation, and the circumstances in which the usual costs rule may be departed from. The court noted that public interest litigation often involves complex issues and significant resources, and that the usual costs rule may not always be appropriate in such cases. The court also considered the particular circumstances of the case, including the public interest involved and the conduct of the parties.

The court held that the particular circumstances of the case justified departing from the usual costs rule. It found that the case involved significant public interest considerations and that both parties had acted reasonably in pursuing their respective cases. The court concluded that it was appropriate for each party to bear its own costs of the hearing and determination of the separate question. The court also noted that it was a matter for the primary judge to make orders in respect of the amended originating application.

The court made orders that each party bear its own costs of the hearing and determination of the separate question. The court noted that it was a matter for the primary judge to make orders in respect of the amended originating application. The orders were made under Rule 39.32 of the Federal Court Rules 2011.