Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC
[2018] WASC 34 (S)
•16 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CONSERVATION COUNCIL OF WESTERN AUSTRALIA (INC) -v- THE HON STEPHEN DAWSON MLC [2018] WASC 34 (S)
CORAM: MARTIN CJ
HEARD: ON THE PAPERS
DELIVERED: 16 APRIL 2018
PUBLISHED: 16 APRIL 2018
FILE NO/S: CIV 2089 of 2017
BETWEEN: CONSERVATION COUNCIL OF WESTERN AUSTRALIA (INC)
First Applicant
SHIRLEY WONYABONG
ELIZABETH WONYABONG
VICKY ABDULLAH
Second Applicants
AND
THE HON STEPHEN DAWSON MLC
First Respondent
CAMECO AUSTRALIA PTY LTD
Second Respondent
Catchwords:
Costs - Whether circumstances justify no order as to costs - Proceedings in the public interest
Legislation:
Environmental Protection Act 1986 (WA)
Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37
Result:
Order that applicants pay 50% of respondents' costs
Category: B
Representation:
Counsel:
| First Applicant | : | Dr J Schoombee & Mr D C Doherty |
| Second Applicants | : | Dr J Schoombee & Mr D C Doherty |
| First Respondent | : | Mr G Tannin SC & Ms C Taggart |
| Second Respondent | : | Mr C G Colvin SC & Mr B Wylynko |
Solicitors:
| First Applicant | : | Environmental Defender's Office (WA) Inc |
| Second Applicants | : | Environmental Defender's Office (WA) Inc |
| First Respondent | : | State Solicitor for Western Australia |
| Second Respondent | : | Clayton Utz |
Case(s) referred to in decision(s):
Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211
Buddhist Society of Western Australia (Inc) v Shire of Serpentine and Jarrahdale [1999] WASCA 55
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136
Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S)
Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S); (2014) 313 ALR 208
Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471
MARTIN CJ:
On 8 February 2018, I published my reasons for concluding that the substantive proceedings should be dismissed.[1] Despite the provision of access to my reasons well prior to their publication, the parties were not in a position to present argument with respect to the orders properly made in relation to the costs of the proceedings at the time my reasons were published. It is in the interests of the efficient utilisation of the limited resources of the court, and also in the interests of reducing the legal costs incurred by the parties, if all issues relating to the costs of proceedings are debated and resolved at the time reasons are published and judgment is entered. Protracted and expensive satellite litigation relating to the costs of proceedings after they have been determined by the court is contrary to the public interest and to the interests of the parties, and will be actively discouraged by the court. The reason why the court provides parties with access to reasons prior to their publication is to enable all issues with respect to costs to be determined at the time of publication.
[1] Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34.
In this case, prior to publication of my reasons, the parties agreed upon, and provided to the court, a minute of consent orders adjourning all issues with respect to costs and providing a timetable for the exchange of written submissions relating to the costs of the proceedings. Given the public and private interests to which I have referred, it should not be assumed that orders of this kind will be made by the court merely because the parties have agreed upon them. In this case, when I indicated my disinclination to make the orders which had been agreed, I was advised by the parties that they were not in a position to present argument with respect to the costs of the proceedings at that time. I was thus presented with a fait accompli, and left with no alternative other than to make the orders sought with respect to the exchange of written submissions relating to costs. However, it should not be assumed that parties can, in effect, force the hand of the court in this way. Legal representatives who attend judgment delivery without being prepared to present argument with respect to costs at the time judgment is delivered take the significant risk that orders will be made with respect to costs irrespective of whether the parties are prepared and able to present argument at that time.
In the present case, seven separate sets of written submissions were provided in relation to the costs of the proceedings in the month following publication of my reasons. In order to provide the context for a consideration of the issues raised in those submissions, it is necessary to briefly describe the nature of the substantive proceedings.
The substantive proceedings
The substantive proceedings were proceedings by way of judicial review of a decision purportedly made by the then Minister for the Environment,[2] to the effect that a proposal by the second respondent, Cameco Australia Pty Ltd (Cameco) to mine uranium ore from the Yeelirrie deposit could be implemented subject to certain conditions. The proceedings were commenced by the Conservation Council of Western Australia (Inc) (the first applicant), which is a peak body representing 107 member groups which share the objective of promoting conservation of the natural environment, environmental protection and sustainability throughout Western Australia. The second applicants are Aboriginal people with native title rights and cultural custodial duties in relation to country which includes the land at Yeelirrie on which Cameco proposes to mine uranium ore.
[2] The current Minister for the Environment is the first respondent to the proceedings.
In the substantive proceedings, the applicants challenged the validity of the Minister's decision on two quite separate and distinct grounds, namely:
Ground 1
(a)the Minister's decision was not 'in accordance with' his own earlier decision dismissing an appeal from a report presented to him by the Environmental Protection Authority (the EPA) in which it recommended against implementation of Cameco's proposal, with the consequence that the Minister's decision contravened s 45(6) of the Environmental Protection Act 1986 (WA) (the Act); and
Ground 2
(b)the conditions specified by the Minister as conditions to which implementation of the proposal was to be subject were invalid for various reasons, with the result that the decision was invalid.
The applicants' contention with respect to costs
The applicants contend that a combination of factors give rise to special circumstances which justify a departure from the usual practice of the court of awarding costs in favour of successful parties to litigation. I will address each of the factors which are said to give rise to that consequence in due course after setting out the general principles which govern issues of this kind.
General principles with respect to costs
The court has a general discretion with respect to the costs of proceedings before it.[3] Although the court's general discretion with respect to costs has been described as 'absolute and unfettered', the discretion will generally be exercised on the basis that a successful party to litigation is entitled to an award of costs in its favour.[4] The court will only depart from exercising the discretion in accordance with this principle if there are 'sufficient special circumstances to justify a departure from the ordinary rule as to costs'[5] - terminology which is intended to emphasise the rare and exceptional character of the occasions upon which there will be a departure from the ordinary rule.[6]
[3] Supreme Court Act 1935 (WA), s 37; Rules of the Supreme Court 1971 (WA), O 66 r 1(1).
[4] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (Oshlack); Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) [8] (Roe).
[5] Oshlack[20]; Roe[9].
[6] Roe[13].
The characterisation of proceedings as 'public interest litigation' may be a factor which contributes to a finding of 'special circumstances' but is not usually, of itself, sufficient to constitute special circumstances justifying departure from the ordinary rule as to costs.[7] Care must be taken to ensure that the characterisation of proceedings as 'public interest litigation' 'does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner'.[8]
[7] Oshlack[20]; Roe[9].
[8] Buddhist Society of Western Australia (Inc) v Shire of Serpentine and Jarrahdale [1999] WASCA 55 [11]; Roe[13].
In addition to the character of the proceedings as 'public interest litigation', the following factors may be taken into account in assessing whether there are sufficient special circumstances to justify departure from the ordinary rule:
(a)the proceedings raise novel legal issues of general public importance;[9]
(b)the extent of public support for the position adopted by the unsuccessful party;[10]
(c)the lack of any prospect of private benefit or advantage to be gained from the proceedings by the unsuccessful party;[11]
(d)the arguability of the case brought;[12]
(e)the special relationship between Aboriginal people and their land;[13] and
(f)the efficiency with which the case was presented.[14]
This list of factors is not intended to be exhaustive, but covers the factors to which reference has been made by the parties in the submissions which have been presented in this case.
[9] Roe[16]; Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 [73]; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [11] - [12].
[10] Oshlack.
[11] Roe [22] - [23].
[12] Roe [21].
[13] Roe[24].
[14] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S); (2014) 313 ALR 208 [43].
The factors upon which the applicants rely
The applicants rely upon the following factors in support of their proposition that there are sufficient special circumstances to justify that the court depart from the ordinary rule as to costs and either make no order as to the costs of the proceedings or award the successful respondents part only of their costs of the proceedings.
The proceedings were brought in the public interest
The applicants contend that the proceedings were brought in the public interest. That contention should be accepted. Protection of the environment is a matter of public interest,[15] and the proceedings were clearly brought for the purpose of protecting the environment. The report from the EPA to the Minister recommended against implementation of Cameco's proposal because of its adverse impact upon the environment of the area proposed to be mined. The fact that the area is remote from any major centre of population does not detract from its environmental significance, or affect the characterisation of the purpose for which the proceedings were brought.
[15] Roe[15].
The respondents accept that ground 1 of the proceedings is properly characterised as brought in the public interest, but contend that ground 2 should not be characterised in this way, because the various issues raised by that ground were project-specific and turned upon the particular structure and wording of the conditions to which the Minister's decision was subject.
I do not accept that the proceedings, insofar as they involve ground 2, should not be characterised as having been brought in the public interest. The conditions to which the Minister's decision was subject were all directed to the protection and preservation of the environment. The arguments advanced in support of ground 2 all involved, to a greater or lesser extent, the proposition that the relevant conditions were ineffective in protecting the environment because of their various asserted deficiencies (such as uncertainty and lack of finality). The fundamental objective underpinning ground 2 was the same as the fundamental objective underpinning ground 1 - namely, the protection of the environment.
The respondents also point to the broader objective which they attribute to the applicants of preventing uranium mining generally. Accepting for the purposes of argument that such an objective can be attributed to the applicants, it does not detract from the evident purpose of the applicants in protecting the environment of the land to be mined from the detriment identified by the EPA in its report to the Minister, being the issue to which ground 1 was directed, or the evident purpose of protecting the environment of the same land from the inefficacy of the conditions imposed by the Minister, being the issue to which ground 2 was directed. In any event, the general objective of preventing uranium mining can also be characterised as an objective of protecting the environment.
The legal issues were novel and of public importance
The applicants contend that the proceedings raised novel legal issues of public importance. Because the legal issues raised by the two grounds are quite separate and distinct, it is desirable to address the issues raised by each ground separately.
The applicants contend that the issues raised under ground 1 with respect to the interaction between s 44 and s 45 of the Act were novel issues of public importance. In particular, the applicants submit that there was a need to clarify the application of these provisions in light of the limited guidance of the court in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 (Coastal Waters). The respondents accept that the issues raised by ground 1 were novel, but do not accept that they were of public importance. Further, the respondents submit that these proceedings did not directly challenge the reasoning in Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471, and involved standard questions of statutory construction.
The applicants' contention is to be preferred. There is a potential tension arising from the interaction between s 44 and s 45 of the Act, which could give rise to issues of public importance in other cases and which required the court to identify the proper meaning of the expression 'in accordance with' contained in s 45(6) of the Act. Detailed analysis of the effect of the earlier decision in Coastal Waters was necessary in order to resolve the issue raised by ground 1. This required an assessment of precisely what had, and what had not, been resolved in that case. Given that s 44 and s 45 of the Act may be applied to the assessment of significant projects of considerable public importance, the legal issues raised by ground 1 are properly characterised as issues of public importance.
However, the same cannot be said of the legal issues raised by ground 2. The legal principles regarding the validity of conditions attached to development approvals are well settled. The only contentious issues arising under ground 2 related to the construction and effect of conditions which were specific to the particular approval in this case. There was no evidence to the effect that the conditions considered in this case are regularly or routinely applied to other approvals granted under the Act.
Accordingly, I conclude that ground 1 raised a novel legal issue of public importance, but ground 2 did not.
The applicants' case was arguable and not frivolous or vexatious
The applicants contend that the case which they advanced was arguable and neither frivolous nor vexatious. By contrast, the respondents contend that ground 1 was not arguable because it ran directly up against fatal factual and textual obstacles. The respondents further contend that ground 2 did not challenge settled legal principles and failed because ‘much of the argument advanced in support of the ground misconstrued the proper meaning and effect of the impugned conditions’ and relied upon ‘legal qualities which the conditions must bear which are not consistent with established legal principle’.
Ground 1 was clearly arguable, although in the result it failed for both legal and factual reasons. It could not be categorised as frivolous or vexatious. It drew support from observations made by one of the members of the court in Coastal Waters and from the terminology of s 45(6) of the Act.
Although ground 2 could not be categorised as frivolous or vexatious, nor as unarguable, it was a very weak ground having regard to the matters identified in my reasons, and which are repeated by the respondents in the submissions to which I have referred.
The applicants were asserting a public interest without prospect of personal gain or advantage
The applicants contend that none of the applicants sought any personal gain or advantage by pursuit of the proceedings. The respondents contend that the first applicant has not demonstrated its standing and that, in any event, its position as a peak body gives it no position of privilege. The respondents further contend that the second applicants have a private interest beyond their cultural responsibility to speak for the land, including an interest in preventing a detrimental impact on bush tucker which they extract from the land, and in preventing impediment to their access to the land and free travel across it.
It was not necessary to determine the standing of the first applicant, given the respondents' concession that the second applicants had standing. As the question of the first applicant’s standing has not been determined, it cannot be assumed that it would have been found that the first applicant lacks standing, had it been necessary to determine that issue. What is more important to the issue of costs is that the first applicant represents 107 different groups with an interest in the protection of the environment, thus demonstrating general public support for the position adopted by the applicants.[16] Neither the first applicant nor any of its members had any prospect of personal gain or advantage to be derived from the proceedings.
[16] Which is relevant to the costs issue - see Oshlack.
Turning to the second applicants, I do not accept the respondents' assertion that they were motivated in part by the pursuit of some private interest in access to, or use of, the land. The correspondence to which the respondents refer makes clear that the second applicants were acting in the discharge of what they take to be cultural responsibilities to protect the land and the rights of access and enjoyment which all who regard that land as their traditional land wish to exert in respect of the land. The maintenance of traditional rights of use and enjoyment recognised by native title are not, in my view, to be equated to a form of private interest or advantage.
The special relationship between Aboriginal people and their land
The applicants contend that this is a case in which the special relationship between Aboriginal people and their land is relevant to the exercise of the court’s discretion with respect to costs. The respondents do not submit otherwise, and the applicants' contention must be accepted.
Cost and efficiency
The applicants submit that they conducted and presented their case in an efficient manner, including by reaching agreement with respect to relevant facts with the solicitors for the respondents. The respondents submit that efficiency is not an entitling factor, although the absence of efficiency may be a disentitling factor. The second respondent further submits that the applicants did not, in fact, conduct their case efficiently.
Certainly, some aspects of the applicants' case were conducted efficiently - such as the agreement with respect to relevant facts. However, other aspects of the applicants' case could not be characterised in the same way. For example, shortly prior to the commencement of the hearing there was an unresolved issue with respect to a possible application to amend the grounds upon which relief was sought. The written submissions advanced in support of the second ground were convoluted and repetitive, and at times difficult to follow. Because of the manner in which the case with respect to the second ground was presented, it was necessary to produce lengthy reasons addressing a ground which was fundamentally weak.
In the result, I consider the issue of efficiency to be neutral in relation to the exercise of the discretion with respect to the costs pertaining to ground 1, and to count against the applicants with respect to the costs pertaining to ground 2.
Disposition
For the reasons I have given, a number of the propositions advanced by the applicants in support of their assertion that there are sufficient special circumstances to justify departure from the ordinary exercise of discretion with respect to costs have been made good. The question which remains to be determined is whether those factors in combination place this case within the category of 'rare and exceptional' cases in which departure from the usual order as to costs is justified. That question will necessarily be answered by the court as a matter of impression rather than by scientific or mathematic evaluation.
In the present case, the applicants' assertion of special circumstances is significantly stronger in relation to the issues raised by ground 1 than in relation to the issues raised by ground 2. Ground 1 raised a novel legal issue of public importance and was significantly stronger than ground 2. Ground 2 raised no novel legal issue of public importance and was only barely arguable. The argument in support of ground 2 was not presented efficiently.
I have concluded that the applicants have established special circumstances justifying departure from the usual order as to costs with respect to that part of the proceedings relating to ground 1, but not with respect to that part of the proceedings relating to ground 2.
Effect could be given to that conclusion in either of two ways. I could make no order as to costs with respect to that part of the proceedings relating to ground 1, and order that the applicants pay the respondents' costs in respect of ground 2, leaving it to the taxing officer to differentiate between the costs incurred with respect to the separate grounds. Alternatively, I could make my own assessment of the relative proportion of costs involved in each of the grounds, and apply that assessment to the order I make, thereby obviating the need for a detailed assessment of the costs incurred with respect to individual grounds.
The latter course is to be preferred, because it avoids the possible complication and expense of attempting to allocate particular items of cost to particular grounds. Again, the assessment of the proportion of costs incurred in respect of the grounds is to be undertaken as a matter of impression rather than with scientific or mathematical precision. On that basis, I consider that the costs incurred with respect to each of the two grounds are likely to have been approximately equal. Accordingly, the appropriate order to give effect to the conclusions I have reached is that the applicants pay 50% of the respondents' costs, to be taxed if not agreed.
The costs of the argument with respect to costs
In their written submissions, the respondents sought a special order with respect to the costs of the argument relating to costs because of their concern that the costs of this argument would result in the cap on the costs available to them under the relevant item relating to the substantive proceedings being inadequate. The expression of that concern reinforces the observations I made at the commencement of these reasons with respect to the undesirability of satellite litigation of this kind.
In the result, however, I have concluded that each of the applicants and the respondents have been partially successful in their arguments with respect to the costs of the proceedings. In those circumstances, the appropriate order is that there be no order with respect to the argument as to costs, and the issue raised by the respondents does not arise.
Conclusion
For these reasons, the applicants will be ordered to pay 50% of the respondents' costs of the proceedings, to be taxed if not agreed. Those costs are not to include the costs pertaining to the argument with respect to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO MARTIN CJ16 APRIL 2018
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