Bob Brown Foundation Inc v Spicer (No 2)
[2024] TASSC 20
•5 March 2024
[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 to order "otherwise" is unfettered.
5 Counsel for the applicant referred me to two decisions of my own: Gunns Limited v Alishah (No 3) [2009] TASSC 103, 19 Tas R 401 and Woods v Deputy Commissioner of Taxation (No 2) [2012] TASSC 11, 21 Tas R 234. In the first case, I considered at some length the question of whether there was a threshold test to exceptional circumstances to permit departure from the default position. I concluded there was no such test.
6 I took the same view in Woods at [12], where I said that the power was not reserved for rare or exceptional" cases, but is to be exercised when the interests of justice in a particular case require a departure from the rule.
7 In Woods at [13] I set out a number of the policy considerations behind a rule which delays payment of costs for interlocutory applications until the conclusion of the principal proceedings. One of those considerations is that it is usually inappropriate to require the unsuccessful party to interlocutory applications to pay costs immediately, since that party might ultimately succeed in the substantive proceedings, and set-offs can be made in light of the ultimate orders as to costs.
8 In Woods at [15], I went on to say:
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"Factors which are said to justify the exercise of the discretion to order that costs of interlocutory proceedings be taxed and payable forthwith are of course, in several instances, mere reflections of the policy considerations. Factors which have been identified are:
• where the interlocutory proceedings are sufficiently self-contained and detached, or a discrete issue has been resolved; • where the principal proceedings are not likely to be resolved for some time, thus denying the successful party access to the costs; • where the interlocutory proceeding has had the effect of resolving a substantive part of the principal proceedings; • where the financial position of the party in whose favour the order is made is such that their ability to continue in the litigation may be affected ( and the same effect on the party liable is not likely as a result of paying immediately); • where there appears no real likelihood of multiple applications for costs to be taxed and payable forthwith as the interlocutory proceedings unfold; • where there has been some unreasonable conduct by the party against whom the costs have been awarded."
9 As I noted, the lists of factors is not an exhaustive one, and in the exercise of the discretion a court should have regard to the demands of justice as shown in the particular case.
10 Interlocutory applications for injunctive relief involve more specific principles. In RB (Hygiene Home) Australia Pty Ltd v Henkel Australia Pty Ltd (No 2) [2021] FCA 1194 at [11], Halley J noted a marked distinction between an interlocutory order that disposed of a separate question or discrete issue, and an interim injunction that is obtained for the purpose of preserving the status quo pending a final determination of an applicant's cause of action. His Honour observed, by reference to ASIC, re Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd (No 2) [2017] FCA 385, that in the latter case the court has not conclusively determined any controversy between the parties; it has only made a preliminary assessment of the strength of an applicant's cause of action and having regard to the balance of convenience.
11 His Honour went on to note that an order that costs be in the cause or in the applicant's cause, has been described as the "usual order", and explained the rationale for such an order by reference to the New South Wales Court of Appeal judgment in the Metropolitan Petar case[1] at [21]; viz:
"The rationale for making an order that costs be costs in the cause is that, at the stage of granting an interlocutory injunction, the court is not in a position to adjudicate on the ultimate outcome of the proceedings. Rather, provided there is a reasonable case
to be tried, the Court’s focus in deciding whether to grant the application for
interlocutory relief is on other considerations and, in particular, on determining whether, on the balance of convenience, an injunction ought to be granted. Accordingly, if a plaintiff who applies for an interlocutory injunction is not ultimately successful in the proceedings, that plaintiff should not receive the costs of the application for an injunction which, when the matter is considered in overview cannot be sustained. However, as already explained, each case must depend upon its own facts."
[1] His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New
12 In the RB (Hygiene Home) case, Halley J stated that the usual but not invariable practice is that, in the absence of any specific disentitling conduct, the appropriate costs order in circumstances in
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which an applicant has been successful in obtaining an interlocutory injunction is that costs be the
applicant’s costs in the cause rather than each party’s costs in the cause. This usual but not invariable
practice, of course is reflected in SCR r 65(a) but extends to all interlocutory applications.
13 In this case, the applicant submits that departure from the default position is justified by a number of matters which fall within the factors identified in the above passage from Woods. The first arises from correspondence between the parties. The application was filed on 11 December 2023 and served the next day. It was listed for hearing on 18 December. On 13 December, the respondent's solicitors wrote to the applicant's solicitors pointing out that harvesting in the relevant coupe was due to cease shortly in any event, and would not recommence until 26 January 2025. It was said that as there was no urgent need for a hearing of the application, an adjournment was sought to a date in January 2024.
14 The applicant's solicitors replied on 13 December 2023, stating that the applicant would agree to an adjournment on a number of conditions. Relevantly, they were that the respondent give an undertaking to the Court that all forestry operations cease by 15 December 2023, and not recommence until the substantive matter is determined. The respondent would only agree to an undertaking not to conduct any forest practices as defined in s 3 of the Forest Practices Act 1985, from 5pm 18 December 2023 until the determination of the interlocutory application, as distinct from the substantive proceedings.
15 I do not see how the applicant's proposal, described as an "invitation", assists the applicant in relation to the matter of costs. The applicant did not suggest otherwise, but the correspondence did not amount to a Calderbank type of offer. There was no reference to the correspondence being used in relation to questions of costs. It is true that, absent an injunction, the subject matter at the heart of the
application – the potential breeding habitat for the swift parrot – would have disappeared by the time
the substantive proceedings were resolved. However, in my view, given the assessment process undertaken by the FPA before the Plan was certified, the respondent was within its rights to agitate the issues normally inherent in an application for an interlocutory injunction. There is nothing to suggest it acted vexatiously in putting the applicant to proof in respect of those issues.
16 Second, the applicant made an attempt to characterise the issues on the interlocutory application as involving a discrete matter concerning the suspension of the order, as distinct from its legality. I am not able to accept that as a legitimate distinction. The question of the suspension of the operation of the order depended upon, in part, an arguable case as to its legality.
17 Third, the applicant relied on the respondent's conduct at the hearing. The respondent made a number of objections to the affidavit material relied on by the applicant; in particular, three affidavits of Charley Gros. The first objection was that Mr Gros was not qualified as an expert enabling him to identify the call of the swift parrot, and that in part at least, he relied on a person he referred to as an expert but, in turn, in respect of whose expertise, there was no evidence. (As to the significance in the application, see pars [10] and [18]-[21] of the principal reasons.)
18 After the objection was initially taken, the applicant sought leave to file a further short affidavit for Mr Gros. Leave was granted along with a short adjournment to enable that to be done. That affidavit further explained Mr Gros's level of familiarity with the bird's call. In relation to the identity of the bird's call, as was ultimately accepted by the senior counsel for the respondent, the issue was not so much proving the fact of the presence of the bird in the coupe, but that there was evidence of a credible report available to the decision-maker. That simply rested on Mr Gros's level of familiarity, and of course, it was common ground that at the time of the decision, an audio "detection" of the bird had been lodged with the NVA, albeit on information about vegetation that was later amended.
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19 There was a further objection to the effect that evidence from Mr Gros of the detections by audio devices of calls identified as that of the swift parrot were irrelevant because they were obtained after the certification of the Plan. However, that evidence was plainly relevant to the question of the balance of convenience.
20 Objection was also made on that Mr Gros did not have sufficient expertise to enable him to give evidence about the identification and measurement of trees within the coupe. (As to the significance in the application, see pars [22]-[24] of the principal reasons.) The evidence of Mr Gros as to the nature of the remaining forest, did not so much involve identification of trees by species as identification of potential nesting habitat including by reference to FPA Fauna Technical Note 3. The measuring exercise involved no expertise. In the end, the issues identified by the respondent as to this aspect, came down to questions of weight. This evidence was also relevant to the balance of convenience issue.
21 I did not uphold any of the respondent's objections, but of course, in response to the objection I have first noted, the applicant felt the need to supplement the affidavit material in.
22 That the respondent did not, in effect, succeed in relation to its objections, is not the end of the matter. The objections might well be described as ambitious, but in the circumstances of this case that does not constitute unreasonable conduct to a degree that would justify the immediate payment of costs irrespective of the ultimate outcome. Compare for instance: TTE Pty Ltd v Ken Day Pty Ltd [1990] 2 NTLR 143 and Gueriner v Patterson [1992] 110 FLR 178.
23 I take into account the particular considerations that relate to applications for interlocutory injunctive relief, as earlier set out. The application was to preserve the status quo and did not resolve any substantive matter in issue between the parties. As to the particular facts of this case, taking each matter individually, none of themselves amounts to a sufficient reason to depart from the default position. Neither does the collective effect of those factors lead to a conclusion that departure from that position is justified.
24 The appropriate order is that the costs of the interlocutory application dated 11 December 2023 be costs in the cause of the applicant. I note that I have previously certified that this was a proper matter for the attendance of counsel.
Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142.
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