FEDERAL COURT OF AUSTRALIA
Booth v Bosworth [2001] FCA 1718
PRACTICE AND PROCEDURE – costs – respondents’ conduct likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area – prohibitory injunction restraining respondents’ conduct granted under subs 475(2) of Environment Protection and Biodiversity Conservation Act 1999 (Cth) – question of appropriate order as to costs – exercise of discretion created by s 43 of Federal Court of Australia Act 1976 (Cth) – whether in the circumstances of the case the costs to be paid to the successful party should be reduced
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 475(2)
Federal Court of Australia Act 1976 (Cth) s 43Booth v Bosworth [2000] FCA 1878 referred to
Booth v Bosworth [2001] FCA 1453 cited
Yates Property Corporation Pty Ltd v Boland (No. 2) (1997) 147 ALR 685 referred to
Oshlack v Richmond River Council (1998) 193 CLR 72 applied
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 citedCAROL JEANETTE BOOTH v ROHAN BRIEN BOSWORTH AND FRANCES BRIEN BOSWORTH
Q 163 of 2000BRANSON J
SYDNEY (Heard in Brisbane) (Heard in part via video link)
6 DECEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
Q 163 OF 2000
BETWEEN:
CAROL JEANETTE BOOTH
APPLICANTAND:
ROHAN BRIEN BOSWORTH
FIRST RESPONDENTFRANCES BRIEN BOSWORTH
SECOND RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
6 DECEMBER 2001
WHERE MADE:
SYDNEY (Heard in Brisbane) (Heard in part via video link)
THE COURT ORDERS THAT:
1.The respondents pay the applicant’s taxed costs, including reserved costs (if any), of the proceeding other than:
(a)the costs covered by the order made by Spender J on 13 December 2000; and
(b)the costs of and incidental to the making of further submissions to the Court on 8 August 2001.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
Q 163 OF 2000
BETWEEN:
CAROL JEANETTE BOOTH
APPLICANTAND:
ROHAN BRIEN BOSWORTH
FIRST RESPONDENTFRANCES BRIEN BOSWORTH
SECOND RESPONDENT
JUDGE:
BRANSON J
DATE:
6 DECEMBER 2001
PLACE:
SYDNEY (Heard in Brisbane) (Heard in part via video link)
REASONS FOR JUDGMENT
INTRODUCTION
This proceeding involved an application for a prohibitory injunction under subs 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the Act”). The applicant contended that the conduct of the respondents in operating a large electric grid on their lychee orchard for the purpose of killing flying foxes was (at the lowest) likely to have a significant impact on the world heritage values of the adjacent Wet Tropics World Heritage Area.
On 13 December 2000 (ie near the end of the lychee picking season for that year) Spender J refused an application for interlocutory relief by way of an interim injunction restraining the first respondent from causing, procuring or allowing the death or injury of flying foxes on his property pending the Court’s determination of the principal application. The second respondent had not at that time been joined as a…
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- Booth v Bosworth [2001] FCA 1718
- Case
- [2001] FCA 1718
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CaseChat Overview and Summary
The legal issues before the court included whether the respondents’ costs of successfully resisting the interlocutory application should be taken into account as an offsetting factor against the applicant’s costs, and whether the applicant's relief sought was overreaching. Additionally, the court considered the attitude of the applicant towards proposals that could have deterred Spectacled Flying Foxes without causing their death, and the nature of the case as potentially a "test case" from which the applicant and her supporters gained benefit.
In its reasoning, the court noted that the first respondent's costs of resisting the interlocutory application would not be recovered unless the ordinary rule was departed from. The court held that interfering with the costs order made by Spender J would amount to an effective interference with that order. Consequently, the court determined that the justice of the case did not require a departure from the ordinary rule of costs in favour of the party who succeeds.
The court ordered that the respondents pay the applicant's taxed costs, excluding those covered by the interlocutory costs order and the costs of making further submissions to the Court. This decision upheld the principle of party and party costs unless special or unusual circumstances warranted a departure.
Orders
Orders of the court
1. The respondents pay the applicant’s taxed costs, including reserved costs (if any), of the proceeding other than:
(a) the costs covered by the order made by Spender J on 13 December 2000; and
(b) the costs of and incidental to the making of further submissions to the Court on 8 August 2001.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
The respondents do not seek any order for costs in their favour. Moreover, they accept that the applicant is prima facie entitled to an order awarding her some costs. However, they submit that, having regard to the particular circumstances surrounding this case, either there should be no order made as to costs or alternatively the applicant should be awarded only a small percentage of her costs. The respondents’ submission was advanced on the following broad bases:(i)that the respondents’ (perhaps more accurately, the first respondent’s) costs of successfully resisting the interlocutory application should be taken into account as an offsetting factor against the applicant’s costs of the trial;(ii)that the relief sought by the applicant was plainly over-reaching;(iii)that the applicant took an “attitude” throughout the proceeding such as to reject any proposal that the grid might be operated with a reduced electric current so as to deter Spectacled Flying Foxes without killing them;(iv)that it is apparent that the case of the applicant was prepared and presented with the support of public contributions while the respondents’ costs, including any costs that they are ordered to pay to the applicant, will have to come out of their own pockets along with the loss resulting from the grant of the injunction;(v)that the applicant does not appear to be under an obligation to repay donations made to support the conduct of her case and that she may not have paid, or incurred a personal liability to pay, costs;(vi)that the proceeding was in the nature of a “test case” from which the applicant and her supporters gained benefit but the respondents did not; and(vii)that the applicant retained two junior counsel but the senior of them did not, and seemingly was never intended to, make a real contribution to the conduct of the applicant’s case.CONSIDERATION The principal issue for present determination is whether the justice of this case requires that the ordinary rule in favour of party and party costs be departed from or whether a special or unusual feature of the case can be identified which calls for departure from the ordinary rule. The first factor which the respondents identified as requiring or calling for a departure from the ordinary rule is, in effect, that the first respondent’s costs of successfully resisting the application for interlocutory relief will not be recovered by the respondents unless the ordinary rule is departed from. As is mentioned above, Spender J ordered that the costs of and incidental to the interlocutory application be the first respondent’s costs in the proceeding. His Honour could have, but did not, order that the costs of the interlocutory application be the first respondent’s costs in any event. As the respondents’ submission recognises, it followed necessarily from the order made by Spender J that, unless the first respondent obtained an order for costs in his favour in the proceeding, he would not obtain his costs of and incidental to the interlocutory application. It seems to me that if I were to exercise the discretion given to me by subs 43(2) of the Federal Court Act in a way which reduced the costs to be paid to the applicant because of the impact, in the circumstances which have happened, of his Honour’s costs order, this would amount to an effective interference with His Honour’s costs order.