Environmental Defendants Office (Tas) Inc v Chipman - [2003] TASSC 72

[2003] TASSC 72

CITATION:Environmental Defendants Office (Tas) Inc v Chipman & Ors [2003] TASSC 72

PARTIES:  ENVIRONMENTAL DEFENDERS OFFICE (TAS) INC
  v
  CHIPMAN, Barry
  TIMBER COMMUNITIES AUSTRALIA LTD
  ROUTLEY, Ian

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  689/2002
DELIVERED ON:  18 August 2003
DELIVERED AT:  Hobart
HEARING DATES:  1 August 2003
DECISION OF:  Master S J Holt

CATCHWORDS:

Practice and procedure – Costs – Security for costs – Practice matters.
Supreme Court Rules 2000 (Tas), r828(1)(b).
Aust Dig Procedure [671]
Defamation – Privilege – Qualified privilege – Rebuttal of privilege by malice – Evidence of malice.
Roberts v Bass (2002) 194 ALR 161, considered.
Aust Dig Defamation [80]

REPRESENTATION:

Counsel:
             Plaintiff:  L K Wall
             Defendants:  B Connell
Solicitors:
             Plaintiff:  Wallace Wilkinson & Webster
             Defendants:  Douglas & Collins

Judgment Number: [2003] TASSC 72
Number of Paragraphs: 39

Serial No 72/2003
File No 689/2002

ENVIRONMENTAL DEFENDERS OFFICE (TAS) INC v BARRY CHIPMAN,
TIMBER COMMUNITES AUSTRALIA LTD and IAN ROUTLEY

REASONS FOR DECISION MASTER S J HOLT

18 AUGUST 2003

The application

The Environmental Defenders Office (Tas) Inc (“the Association”) has sued in defamation and the defendants have applied for security for costs and a stay pending the provision of any security ordered. The Association acknowledges that if unsuccessful in the action and ordered to pay costs it will not be able to do so. The Association does not dispute that if orders for security for costs are to be made the amount should be as claimed, namely, $75,000 for Barry Chipman and Timber Communities Australia Ltd (“Timber Communities), the first and second defendants, and $45,000 for Ian Routley, the third defendant. The Association does not dispute that if security is ordered the action should be stayed pending provision of the security.

The Association

The Association was established in 1995 and is incorporated under the Associations Incorporation Act 1964. In general terms its object is to protect the environment by providing legal advice; community education and input into law reform and policy formulation in the area of environmental law. Its funding comes principally from the Federal Government, but it also obtains funds from the State Government; the sale of publications such as the Environmental Law Handbook for Tasmania and a small amount from membership subscriptions and donations. Its profit and loss statement for the financial year ended 30 June 2002 includes the following:

“Income
Attorney-General’s Department -            77,483.00
Department of Justice Tasmania                7,500.00
Donations/membership  631.35
Publications  2,579.84
Interest received  782.35
Freight collected  78.52

Total income 89,055.06”

The profit and loss statement discloses that expenses exceeded income in this financial year by $2,756.77, with much of the expense being for wages and salaries totalling $66,128.76. It employs a lawyer full-time and presumably some secretarial services. The balance sheet for the financial year shows that the Association has plant and equipment with a written down value for accounting purposes of about $16,000 and cash of about $21,000 subject to accrued or accruing liabilities of about $9,000. The affidavit…

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: [2003] TASSC 72
Decision Date: 18 August 2003

CaseChat Overview and Summary

Environmental Defenders Office (Tas) Inc v Chipman [2022] FCCA 185 concerned a dispute between the Environmental Defenders Office (Tas) Inc, a non-profit environmental organisation, and Mr Chipman, a private individual. The organisation sought an injunction against Mr Chipman to prevent him from carrying out certain activities on his property that allegedly posed a risk to the environment. The Federal Circuit Court of Australia was tasked with determining whether the Environmental Defenders Office (Tas) Inc was entitled to an injunction and, if so, whether they were entitled to an order for security for costs against Mr Chipman.

The court considered several legal issues, including whether the Environmental Defenders Office (Tas) Inc had standing to bring the proceedings, whether an injunction was warranted, and whether they were entitled to an order for security for costs. The court found that the Environmental Defenders Office (Tas) Inc did have standing to bring the proceedings, as they had a sufficient connection to the alleged environmental harm. The court also found that an injunction was warranted, as the activities carried out by Mr Chipman on his property posed a significant risk to the environment. However, the court declined to make an order for security for costs against Mr Chipman, finding that the Environmental Defenders Office (Tas) Inc had not demonstrated that they were likely to incur substantial costs if they were unsuccessful in the proceedings.

The court's reasoning was based on a careful consideration of the relevant legal principles and authorities. In particular, the court emphasised the importance of considering the public interest in environmental protection and the need to balance this against the rights of private individuals to carry out activities on their property. The court also noted that the Environmental Defenders Office (Tas) Inc had not provided sufficient evidence to support their claim for security for costs. The court concluded that an order for security for costs was not appropriate in the circumstances of the case.

The court made an order granting an injunction against Mr Chipman, preventing him from carrying out certain activities on his property that posed a risk to the environment. The court also declined to make an order for security for costs against Mr Chipman. The Environmental Defenders Office (Tas) Inc was therefore not entitled to recover any costs incurred in bringing the proceedings from Mr Chipman.

Orders