Bob Brown Foundation Inc v Spicer (No 2) - [2024] TASSC 20

[2024] TASSC 20

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bob Brown Foundation Inc v Spicer (No 2) [2024] TASSC 20
PARTIES:	BOB BROWN FOUNDATION INC
v
SPICER, Kerri
FOREST PRACTICES AUTHORITY
FORESTRY TASMANIA t/as SUSTAINABLE TIMBER
TASMANIA
FILE NO:	3469/2023
DELIVERED ON:	5 March 2024
DELIVERED AT:	Hobart
HEARING DATE:	31 January 2024
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Procedure – Costs – Interlocutory proceedings – Generally – Default position under rules of Court that costs of opposed applications are costs in the cause of the successful party – Departure from the rule – Where interlocutory application one for injunctive or similar relief – Costs discretion governed by more specific rules – Where relief obtained for purpose of preserving status quo – Need to recognise that separate question or discrete issue not disposed of – Other considerations in relation to departure

from the rule.

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and

New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA
142; RB (Hygiene Home) Australia Pty Ltd v Henkel Australia Pty Ltd (No 2) [2021] FCA 1194 followed.

Aust Dig Procedure [11604]

REPRESENTATION:

Counsel:

Applicant: A McBeth
First Respondent: M Rapley
Second Respondent: M Rapley
Third Respondent: B McTaggart SC

Solicitors:

Applicant: Fitzgerald & Browne
First Respondent: State Litigation Office
Second Respondent: State Litigation Office
Third Respondent: Abetz Curtis

Judgment Number:	[2024] TASSC 20
Number of paragraphs:	24

Serial No: 20/2024 File No: 3469/2023

BOB BROWN FOUNDATION INC v KERRI SPICER,

FORESTRY PRACTICES AUTHORITY and

FORESTRY TASMANIA t/as SUSTAINABLE TIMBER TASMANIA

REASONS FOR DECISION

PORTER AJ

5 March 2024

1             This is an application for costs. On 31 January 2024 the applicant succeeded in obtaining a suspension of, and an interlocutory injunction in relation to, a decision of the first respondent made on 29 September 2023. That decision was to certify a forest practices plan for the logging of a particular area. The issue was the possibility that the area was nesting or foraging habitat of an endangered species of bird. I have published edited written reasons which were delivered orally: Bob Brown Foundation Inc v Spicer [2024] TASSC 19. I will here use the same terminology used in those reasons.
2            The applicant now seeks, as against Forestry Tasmania t/as Sustainable Timber Tasmania (the respondent), an order for the costs of the interlocutory proceedings to be taxed and payable forthwith.
3   The situation is governed by Supreme Court Rules 2000, r65(a) which provides:
"65. Costs of incidental applications
Unless the Court or a judge otherwise orders –

(a) the costs of an opposed application in a proceeding are part of the costs of the

cause of the party in whose favour the application is determined; …"

4 Accordingly, the default position is that unless it is otherwise ordered, the costs of this application should be costs in the cause of the applicant. As can be seen, the discretion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] TASSC 20
Decision Date: 5 March 2024

CaseChat Overview and Summary

In this case, the Bob Brown Foundation Inc initiated proceedings against Spicer, resulting in an interlocutory application for injunctive relief. The application was opposed, and the matter was heard by the Federal Court of Australia. The primary dispute revolved around the appropriateness of the costs incurred during the interlocutory proceedings, particularly whether the usual rule of costs following opposed applications should apply or if a departure was warranted due to the nature of the relief sought.

The legal issues before the court were centered on the discretion to award costs in interlocutory proceedings, specifically when the application is for injunctive or similar relief. The Bob Brown Foundation Inc argued that the usual rule that costs of opposed applications are costs in the cause should not apply, while Spicer contended that the standard rule should prevail. The court needed to determine whether the specific circumstances of the case justified a departure from the default position and, if so, what factors should guide the exercise of discretion.

The court held that the default rule regarding costs in interlocutory proceedings should be departed from in cases where the application is for injunctive relief aimed at preserving the status quo. The court recognised that such applications often address a discrete issue that is not the final resolution of the matter. Given the purpose of the relief sought, the court found that the need to recognise the separate nature of the issue at hand justified a departure from the standard rule. The court also considered other relevant factors in exercising its discretion over the costs, ensuring that the decision was fair and just in the context of the overall proceedings.

In conclusion, the court determined that the usual rule of costs should not apply in this instance due to the specific nature of the interlocutory application for injunctive relief. The court awarded costs in a manner that it deemed appropriate, taking into account the need to preserve the status quo and the separate nature of the issue addressed by the relief sought.

Orders