Botany Municipal Council v Secretary, Department of Arts, Sport, the Environment, Tourism and Territories
[1992] FCA 194
•09 MARCH 1992
Re: COUNCIL OF THE MUNICIPALITY OF BOTANY and OTHERS
And: SECRETARY, DEPARTMENT OF THE ARTS, SPORT, THE ENVIRONENT, TOURISM AND
TERRITORIES; THE MINISTER FOR ARTS, SPORT, THE ENVIRONMENT, TOURISM AND
TERRITORIES; and FEDERAL AIRPORTS CORPORATION
Nos. N G759 and G835 of 1991
FED No. 194
Administrative Law - Costs
(1992) 34 FCR 412
(1992) 27 ALD 481 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)
CATCHWORDS
Administrative Law - leave granted to discontinue application for judicial review - whether discontinuance should be defence to proceeding for same or substantially same cause of action under Administrative Decisions (Judicial Review) Act 1977 or s. 39B of Judiciary Act 1903.
Costs - application for judicial review of decision to construct third runway at Kingsford Smith Airport - leave granted to discontinue application - award of costs in discretion of Court - whether costs should be awarded on indemnity basis - whether no order at all should be made as to costs because "public interest litigation".
Judiciary Act 1903
Trade Practices Act 1974
Environment Protection (Impact of Proposals) Act 1974
Federal Court of Australia Act 1976
Administrative Decisions (Judicial Review) Act 1977
Federal Airports Corporation Act 1986
Environmental Planning and Assessment Act 1979 (NSW)
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274
Visy Board Pty Ltd v Attorney-General (Cth) (1984) 2 FCR 113
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166
Kent v Minister of State for Works (1973) 1 ACTR 43
Arnold v Queensland (1987) 73 ALR 607
University of Wollongong v Metwally (1985) 1 NSWLR 722
Nettheim v The Minister for Planning and Local Government (Land and Environment Court of New South Wales, 28 September 1988, unreported)
HEARING
SYDNEY
#DATE 9:3:1992
Counsel and solicitors Mr D.H. Lloyd QC and
for the Applicants: Mr R. Molinari instructed
by Houston Dearn and Associates
Counsel and solicitors Mr S.J. Gageler instructed
for the First and Second by the Australian
Respondents: Government Solicitor
Counsel and solicitors Mr M.H. Tobias QC and
for the Third Respondent: Mr A. Robertson instructed
ORDER
The proceeding be discontinued on terms that
(a) the discontinuance be a defence to a proceeding under the Administrative Decisions (Judicial Review) Act 1977 or s. 39B of the Judiciary Act 1903 for the same or substantially the same cause of action, and
(b) the applicants pay the costs of the respondents including any reserved costs of the proceeding and including the costs of today.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
What follows are reasons in both matters G759 of 1991 and G835 of 1991 upon the issues debated before me this morning. Each proceeding was an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977, which I shall call the ADJR Act.
In each matter, on 28 February 1992 I granted leave to the applicants to discontinue, subject to such terms as to costs or otherwise as may be ordered by the Court. Notices of Discontinuance were filed on that same day. Section 43 of the Federal Court of Australia Act 1976 ("the Federal Court of Australia Act") relevantly provides that the award of costs is in the discretion of the Court. Order 22 r. 2 para. 1 (d) provides that a proceeding may be discontinued so far as regards the whole or part of any claim for relief at any time, with leave of the Court. Rule 7 states:
"A discontinuance under this Order as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to a proceeding for the same, or substantially the same, cause of action."
On 4 February 1992, Sheppard J. set today as the first day of a trial in these matters; the trial was estimated to take two to three weeks. Matter No. G759 of 1991 was commenced on 27 November 1991 and the other matter, G835 of 1991, was commenced on 19 December 1991. What was sought in the second matter was to challenge a decision of the third respondent, the Federal Airports Corporation, made on 7 December 1991. This was after the institution of proceeding No. G759 of 1991; see Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274, where the reasons for the necessity for the second proceeding are discussed.
Directions had been given in each matter and a considerable body of affidavit evidence was filed together with pleadings. The nature of the proceedings, briefly, is as follows. The applicants are the Councils of the Municipalities of Botany, Rockdale, Drummoyne, Leichhardt, Ashfield, South Sydney, Marrickville, Canterbury, Randwick and Sutherland. The first respondent is the Secretary of the Department of the Arts, Sport, the Environment, Tourism and Territories. The second respondent is the Minister for that portfolio and, as I have indicated, the third respondent is the Federal Airports Corporation, a body corporate established by Part 2 of the Federal Airports Corporation Act 1986.
The applicants seek an order of review of the decision of the first respondent made on 8 November 1991 that the environmental impacts of the proposal for the development and operation of a runway at Sydney Kingsford-Smith Airport by the Third Respondent met the object of the Environment Protection (Impact of Proposals) Act 1974. A challenge in like terms is also made in respect of the decision of the second respondent of 12 November 1991.
The third decision under challenge is that of the third respondent on 7 December 1991, as I have indicated, that the third runway at Sydney Kingsford-Smith Airport be constructed. The applicant Councils say that on five grounds they are aggrieved within the necessary meaning of s. 5 of the ADJR Act. First, they say that they are authorities having responsibility under the local government legislation of the State of New South Wales for, in each case, an area near or adjacent to the airport.
Secondly, it is said that the construction of the third runway and the expected increase in aircraft movement at the airport are likely to have a substantial impact on the health, comfort, convenience, safety or well being of persons, property or the environment within the respective local government areas.
Thirdly, it is said that the applicants being the Councils for the Municipalities of Botany, Rockdale, Drummoyne, Ashfield, South Sydney, Marrickville and Randwick submitted criticisms of the Draft Environmental Impact Statement dated September 1990, but such criticisms were dismissed in the supplement to the Environmental Impact Statement dated September 1991.
Fourthly, it is said that the "expected health consequences" of the operation of the third runway may place demands upon the provision by the applicants of health services.
Lastly, it is said that the expected decrease in land values resulting from the operation of the third runway may have the consequence of reducing the income of the applicants.
As I have indicated, the third respondent is a body corporate established by the 1986 statute. Some provisions of that Act, for example para. (a) of sub-s. 7 (2) and s. 41, were referred to by counsel as suggesting that the third respondent may, indeed, be the Commonwealth for the purposes of s. 75 (iii) of the Constitution, thereby attracting federal jurisdiction in respect of any proceeding against it, whether in a federal or State court. However, there is no need to rule on that question in this litigation.
Three points should be made as to the conduct of the applicants. First, their senior counsel says that the decision to discontinue was taken after the receipt of senior counsel's opinion that "the proceedings were unlikely to be successful". Secondly, this advice was obtained, the Court was told, after the respondents, and in particular the third respondent, had put on the affidavit evidence to which I have earlier referred. On the other hand, counsel for the third respondent says that what was disclosed in that evidence only served to underline what should have been plain at an earlier stage in the proceedings. However, I am not satisfied that that is a fair description of the relevant state of affairs. The third point is as follows. On 14 February 1992, junior counsel for the applicants, in the course of a directions hearing, told me that his clients were considering "relying on other rights". Senior counsel for the applicants today informed the Court that his solicitors had "no instructions to commence any other proceedings" but "that is not to say other proceedings may not be commenced in the future". The lack of finality in that position encouraged counsel for the respondents to seek the imposition of a term to reverse the ordinary operation of the terms of O. 22 r. 7. I have set out those terms earlier in these reasons.
I turn now to the submissions for the respondents. The third respondent submits that the following terms should be imposed in respect of the discontinuance (i) that the applicants pay the third respondent's costs of the whole of both proceedings, such costs to include all costs except insofar as they are of an unreasonable amount or have been unreasonably incurred so that, subject to certain exceptions, the third respondent will be completely indemnified by the applicants for its costs and that the amount of such costs, if not agreed, be taxed, (ii) that the discontinuance be a defence to a proceeding for the same or substantially the same cause of action. In the alternative to the first of those terms, that dealing with costs, what is sought is a term that the applicants pay the third respondent's costs of the whole of both proceedings on a solicitor and client basis and that the amount of such costs, if not agreed, be taxed.
The first and second respondents support the submission made as to the reversal of the ordinary operation of O.22 r. 7. However, on the question of costs, the first and second respondents do not seek the indemnity basis, which is the preferred position of the third respondent. That the Court has ample discretion in the matter, which enables it to take into account all relevant factors brought to its notice, sufficiently appears from what was said by Lockhart J. in Visy Board Pty Ltd v Attorney-General (Cth) (1984) 2 FCR 113 at 162.
Counsel for the applicants, in responding to the submissions as to the imposition of a term as to a plea in bar, did not contend that his clients should be free to re-agitate the issues pleaded in these proceedings. It would have been difficult for him to do so when, as already appears, the proceedings were discontinued on advice that they would be unlikely to succeed. But counsel said there was a sufficient safeguard in any event of the position of the respondents. Counsel emphasised that leave would now be required for the commencement of a further application for review under the ADJR Act, given the lapse of time; see s. 11 of the ADJR Act.
However, that requirement does not attach to applications made to the Court in its constitutional jurisdiction invested by s. 39B of the Judiciary Act 1903 ("the Judiciary Act"). I appreciate that the applicants wish to preserve their position as to the review of any future decisions of the respondents. However, in my view, the interests of justice in the case, as it now stands, call for an order that in each matter the discontinuance be a defence to a proceeding under the ADJR Act or s. 39B of the Judiciary Act for the same or substantially the same cause of action as those pleaded in each matter.
If, as was suggested, action is to be taken against the respondents or at least against the third respondent in a State court alleging breach of State law, issues might then arise as to (a) whether that complaint might have been brought in the proceeding in this Court, especially having regard to the terms of s. 32 of the Federal Court of Australia Act, and (b) as to the effect upon the later proceeding of the reasoning of Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. Nothing I have said in relation to the imposition of the term as to the effect of the discontinuance is intended to foreclose or to express any view upon any such issue if it arises at some later stage.
This brings me to the question of costs. The third respondent seeks costs on an indemnity basis. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401, Woodward J. said:
"I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law."
However, I accept that the discretion conferred by s. 43 is not so circumscribed that an order of this character may be made only against an ethically or morally delinquent party.
In the present case, although there certainly is a question about it, I am not satisfied that if properly advised the applicants would or should never have instituted these proceedings. Nor am I sufficiently certain that the applicants propose to start fresh proceedings to agitate points under State law which could have been agitated in these proceedings. Nor am I satisfied that there has been a want of candour in the statement to the court of the applicants' intentions which is sufficient to merit a special costs order. Nor am I satisfied in the circumstances that there was such an interval of time between the indication to the Court of the possibility of discontinuance (that is to say 14 February 1992) and the date that the respondents were informed that the applicants would be seeking leave to discontinue (that is to say 25 February 1992), to merit a special costs order in relation to that eleven day period.
Accordingly, any order as to costs against the applicants would be made on no more than the usual basis which, in the event, is the basis sought by the first and second respondents. However, the applicants contend that no order at all should be made against them for costs. They contend that this was "public interest litigation" and suggested that they represented what they described as the public interest. The grievances upon which they rely for standing under s. 5 of the ADJR Act are those set out in the amended application in the passages which I have read.
In my view there are no special categories which control the general discretion given by s. 43. However, I do agree with what was said by Burchett J. in a decision to which I was referred by the respondents. It is Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166. That was a case in which there was a debate as to the carriage of costs in respect of an unsuccessful application under the ADJR Act. At 170-1 his Honour said:
"The problem of the impact of costs orders upon individuals pursuing questions by way of judicial review in what they see as the public interest, and not for personal gain, at least in the economic sense, was raised by Fox J. in Kent v Minister of State for Works (1973) 1 ACTR 43 at 55. That was a case concerned with objections to the construction of a tower on Black Mountain, Canberra. When the dispute reached the High Court (as Johnson v Kent (1975) 132 CLR 164), the High Court dismissed both an appeal and a cross-appeal 'with costs', without any suggestion being raised that the costs should not follow the event: see the interesting discussion by Professor Campbell in 'Award of Costs on Applications for Judicial Review' 10 Sydney Law Review 20 at 28-32. In (Arnold v Queensland (1987) 73 ALR 607) at 622, Wilcox J. referred to the appeal as having been brought 'by a public interest group', but there, as appears from what his Honour said and from my own observations (at 635), a number of reasons existed for declining to make an order in respect of costs in favour of the successful party. In de Smith's Judicial Review of Administrative Action, 4th ed, pp. 582-3, the general rule with regard to costs in judicial review matters is stated to be that they follow the event 'unless there are special circumstances that make it proper for an exception to be made'. The well-known incorporated bodies with which I am concerned have not asked for special consideration on the basis under discussion, and I do not think they are in a similar position to that of the individuals whose personal situation caused concern to Fox J. in Kent v Minister of State for Works. If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded."
I accept the submission for the respondents that what is there said applies a fortiori to the present case where the applicants are statutory bodies set up under the local government laws of New South Wales and exercise a wide range of functions.
If it is necessary to look further into the minutiae of the decided cases, it may also be observed that Kent's Case was a case involving a collection of persons who had obtained the fiat of the Attorney-General of the Commonwealth who is, in such cases, deemed to be acting in the public interest to enforce the relevant statutory provision. Secondly, in Arnold's Case, what was involved was an application for costs by a successful intervener. It is by no means to be assumed that an intervener will have its costs: University of Wollongong v Metwally (1985) 1 NSWLR 722. Further, in both Kent and Arnold, the claims which did not succeed were nevertheless of apparent substance and had been pursued to trial.
I was also referred to Nettheim v The Minister for Planning and Local Government, an unreported judgment of the Land and Environment Court of New South Wales which was delivered on 28 September 1988. However, it should be noted that the New South Wales legislation as to standing considered in that case stands in contrast to s. 5 of the ADJR Act. The position under the Environmental Planning and Assessment Act 1979 (NSW), s. 123, appears to be closer to that under s. 80 of the Trades Practices Act 1974, which confers standing to seek injunctive relief upon "any person". Section 5 of the federal statute requires the applicant to be a person "who is aggrieved" by the decision in question. Further, the New South Wales judgment, in addition to being upon different legislation, was delivered after but without reference to detailed discussion in the decision of Burchett J. in the Australian Conservation Foundation Case. In the result, I gain no particular assistance in this present dispute from the decision in Nettheim's Case.
In conclusion then, in each matter, I order that the discontinuance of the proceeding be on terms that:
(a) the discontinuance be a defence to a proceeding under the Administrative Decisions (Judicial Review) Act 1977 or s. 39B of the Judiciary Act 1903 for the same or substantially the same cause of action, and
(b) the applicants pay the costs of the respondents including any reserved costs of the proceeding and including the costs of today.
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