Friends of Hinchinbrook Society Inc v Minister for Environment (No 2)
[1996] FCA 942
•1 NOVEMBER 1996
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - joinder of party - whether applicant a person interested in challenged decision - whether party may be joined for part only of a proceeding - Administrative Decisions (Judicial Review) Act 1977 (Cth) s12.
BIAS - application to judge for disqualification on ground of reasonable apprehension of bias - one party known to judge - association between judge and an interested non-party.
COSTS - security for - factors relevant to exercise of discretion - relevance of legislative scheme for enforcement -World Heritage Properties Conservation Act 1983 (Cth) ss 9, 10, 13 and 14.
PRACTICE AND PROCEDURE - joinder of parties - whether rights of applicant directly affected by orders sought.
PRACTICE AND PROCEDURE - "proper place" of proceedings - factors relevant to an application for transfer - need for efficient case management.
Judiciary Act 1902 (Cth) s39B
Environmental Protection (Impact of Proposals) Act 1974 (Cth) s6
Australian Heritage Commission Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 12, 22, 48, 56
Administrative Decisions (Judicial Review) Act 1977 (Cth)
ss 12, 13, 16
World Heritage Properties Conservation Act 1983 (Cth)
ss 9, 10, 13, 14
Corporations Law ss 57A, 66A, 1335(1)
Federal Court Rules O6 r8, O6 r1, O28 r3
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Ors (1994) 52 FCR 48
Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok (1994) 55 FCR 375
Australian National Industries Ltd v Spedley Securities Ltd (In Liq) & Ors (1992) 26 NSWLR 411
United States Tobacco Company v Minister for Consumer Affairs & Ors (1988) 20 FCR 520
News Limited v Super League Pty Limited & Ors (unreported, Full Federal Court, 4 October 1996)
Scanlon v American Cigarette Company (Overseas) Pty Ltd & Anor (No. 1) [1987] VR 261
K P Cable Investments Pty Ltd v Meltglow Pty Ltd & Ors (1995) 56 FCR 189
Charlwood Industries Pty Limited v Cubitt & Ors (unreported, Federal Court, Gummow J, 15 March 1995)
Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972
National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155
FRIENDS OF HINCHINBROOK SOCIETY INC.
MINISTER FOR ENVIRONMENT & ORS
NG 806 of 1996
CORAM: BRANSON J
PLACE: SYDNEY
DATE: 1 NOVEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 806 of 1996
GENERAL DIVISION )
BETWEEN: FRIENDS OF HINCHINBROOK SOCIETY INC.
Applicant
AND: MINISTER FOR ENVIRONMENT
First Respondent
CARDWELL PROPERTIES PTY LTD
Second Respondent
STATE OF QUEENSLAND
Third Respondent
CORAM: BRANSON J
PLACE: SYDNEY
DATE: 1 NOVEMBER 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
Oral application of 24 October 1996 for disqualification
Application dismissed.
Costs reserved.
Notice of motion of State of Queensland of 16 October 1996
Pursuant to s12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the State of Queensland is made a party to the application to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) subject to the condition that it will not at any time be entitled
to make a claim for costs against any party to the proceeding.Motion otherwise dismissed.
Costs reserved.
Notice of Motion of second respondent of 16 October 1996
Further consideration of paragraph 1 of the notice of motion so far as it seeks an order that the hearing of this proceeding take place in Queensland is adjourned to a date to be fixed.
Any party is at liberty to relist the notice of motion for further consideration of paragraph 1 thereof so far as it seeks an order that the hearing of this proceeding take place in Queensland on five days' notice in writing to each other party.
The hearing of this proceeding is expedited.
Motion otherwise dismissed.
Costs reserved.
Applicant's claim for interlocutory relief by application dated 2 October 1996
The hearing of this proceeding is expedited.
Further consideration of paragraph 3 of the claim for interlocutory relief is adjourned to a date to be fixed.
Any party is at liberty to relist paragraph 3 of the claim for interlocutory relief for further consideration at short notice.
Claim for interlocutory relief otherwise dismissed.
Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
INDEX
THE APPLICATION 1
INTERIM ORDERS AND UNDERTAKINGS 3
HEARING OF 24 OCTOBER 1996 5
CLAIM FOR INTERLOCUTORY RELIEF 8
DISQUALIFICATION APPLICATION 10
APPLICATION BY STATE OF QUEENSLAND
TO BE JOINED AS A PARTY 20
SECURITY FOR COSTS 30
TRANSFER TO QUEENSLAND REGISTRY
AND HEARING IN BRISBANE 45
SUMMARY 50
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 806 of 1996
GENERAL DIVISION )
BETWEEN: FRIENDS OF HINCHINBROOK SOCIETY INC.
Applicant
AND: MINISTER OF ENVIRONMENT
First Respondent
CARDWELL PROPERTIES PTY LTD
Second Respondent
STATE OF QUEENSLAND
Third Respondent
CORAM: BRANSON J
PLACE: SYDNEY
DATE: 1 NOVEMBER 1996
REASONS FOR DECISION
THE APPLICATION
By an application dated 2 October 1996 ("the application") brought pursuant to ss13 and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), s39B of the Judiciary Act 1902 (Cth), s14 of the World Heritage Properties Conservation Act 1983 (Cth) and the associated and accrued jurisdictions of this Court, the applicant has sought review of:
"(a)the decision of the [first] respondent reached on or about 22 August 1996 giving approval to the Second Respondent pursuant to sections 9 and 10 of the World Heritage Properties Conservation Act 1983 to carry out certain works; and
(b)the failure of the [first] respondent to provide a statement of reasons pursuant to s13 of the Administrative Decisions (Judicial Review) Act pursuant to a request made on or about 22 August 1996"
and sought to restrain the second respondent from conducting further work on a site known as Port Hinchinbrook at Oyster Point in the State of Queensland.
The application seeks wide-ranging final relief, the effect of which would be to prevent the proposed development by the second respondent of a tourist resort at Oyster Point ("the proposed development"). However, the interlocutory relief sought by the application is relatively limited. The claim for interlocutory relief is expressed as follows:
"The applicant seeks the following interlocutory relief:-
An order that the First Respondent furnish a statement in writing pursuant to s13(1) of the Administrative Decisions (Judicial Review) Act, 1977 within seven days.
An order that the hearing of the application be expedited.
An order restraining the Second Respondent, its servants or agents from coppicing, damaging or removing any living mangroves at Oyster Point.
An order that service is able to be effected by leaving a faxed copy of the Order in the presence of a person apparently acting with the authority of the Second Respondent on the site at Oyster Point."
INTERIM ORDERS AND UNDERTAKINGS
Following an ex parte hearing brought on as a matter of urgency late in the afternoon of 2 October 1996, I made the following order:
"UPON the Applicant by its Counsel giving an undertaking to pay to any person adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just in such manner as the Courts directs, THE COURT ORDERS THAT:
The Second Respondent, its servants or agents, be restrained until 5.00 pm on Friday 4 October 1996 or earlier order of the Court from coppicing, damaging or removing any living mangroves in or adjacent to the area described as the 'mangrove area' in the consent dated 22 August 1996 annexed hereto.
Service of this order may be effected on the Second Respondent by
(a)serving a faxed copy at the registered office of the second respondent; and
(b)leaving a faxed copy in the presence of a person apparently acting with the authority of the Second Respondent on the site at Oyster point, Cardwell Shire in the State of Queensland.
Further consideration of the matter is adjourned until not before 10.30 am on Friday 4 October 1996.
Time for service of the application is abridged to 2.00 pm on Thursday 3 October 1996.
The parties have liberty to apply at short notice."
Annexed to the above order is an extract from a Special Commonwealth of Australia Gazette dated 28 August 1996 setting out the terms of a consent given by the first respondent on 22 August 1996 under sub-ss 9(1) and 10(2), (3) and (4) of the World Heritage Properties Conservation Act 1983 (Cth) ("the Conservation Act").
This matter came before the Court again on Friday 4 October 1996. On that day, upon the applicant by its counsel giving the usual undertaking as to damages, the second respondent, by its counsel, gave an undertaking that it would not before Thursday 24 October 1996 coppice, remove or deliberately damage any living mangroves in or adjacent to the area described as the "mangrove area" in the consent dated 22 August 1996 annexed to the order of the Court of 2 October 1996. Hearing of the applicant's claim for interlocutory relief was listed for Thursday 24 October 1996. Directions were given as to the filing of affidavit evidence on the applicant's claim for interlocutory relief. Directions were also made for the purpose of ensuring that fore-shadowed motions for the proceeding to be transferred to the Queensland Registry of this Court, and for the applicant to provide security for the costs of the second respondent, were able to be heard on 24 October 1996.
On 24 October 1996, the hearing commenced on that day not having been completed, the second respondent extended its undertaking initially given on 4 October 1996 until Monday 28 October 1996.
HEARING OF 24 OCTOBER 1996
When the matter came before the Court on 24 October 1996, there was before the Court:
(a)the applicant's claim for interlocutory relief;
(b)a notice of motion dated 16 October 1996 filed by the State of Queensland giving notice that the State of Queensland would seek orders pursuant to s12 of the Administrative Decisions (Judicial Review) Act 1977, and O6 r8 of the Federal Court Rules that the State of Queensland be made a respondent to this proceeding; and
(c)a notice of motion dated 16 October 1996 filed by the second respondent giving notice that the second respondent would seek the following orders:
"1.These proceedings be conducted and continued in Queensland and transferred to the Court's Queensland District Registry, General Division.
2.The applicant provide security for costs of the second respondent in these proceedings in such amount and in such manner as the Court sees fit.
3.The proceedings be stayed until such security is provided.
4.The second respondent have leave to apply on seven days notice for an increase in the amount of such security.
5.The notice to produce served on the second respondent on 8 October be set aside.
6.The hearing of these proceedings be expedited."
At the commencement of the hearing on 24 October 1996, Mr Shand QC, who with Mr Dowdy appeared for the second respondent, made an oral application that I disqualify myself from further hearing the matter on the ground of reasonable apprehension of possible bias.
I entertained first on 24 October 1996 the application that I disqualify myself from further hearing this matter. Having heard submissions from Mr Shand, and Mr McClellan QC, who with Mr Preston appeared for the applicant, I declined to disqualify myself. Counsel for neither the first respondent, nor the State of Queensland, sought to be heard on this application. I indicated that I would later give written reasons for my decision. Such reasons are set out below.
I next entertained on 24 October 1996 the application of the State of Queensland to be joined as a respondent to this proceeding. Such application succeeded in part. It is dealt with further below.
The applications that the hearing of this proceeding be expedited and the application of the second respondent, supported by the first respondent and the State of Queensland, that the proceeding be transferred from the New South Wales District Registry of the Court to the Queensland District Registry of this Court caused me to make inquiries of each of the relevant registries. Such inquiries revealed that if the proceeding were to be transferred to the Queensland District Registry, no Queensland based judge could be made available to hear the matter this year. The New South Wales District Registry could, it was learned, list the matter for hearing during the week commencing 16 December 1996. Inquiries also revealed that if the matter were listed for hearing during the week commencing 16 December 1996, and if an application for the hearing, or part of it, to be held in Brisbane were made and were successful, a courtroom would be available in Brisbane. The video conferencing equipment of the Court will also be available during the week commencing 16 December 1996.
The above information was relayed to the parties to allow further consideration by them of their respective attitudes to the applications for an expedited hearing and the application for the transfer of the proceeding to the Queensland District Registry of the Court.
The motion for an order that "[t]hese proceedings be conducted and continued in Queensland and transferred to the Court's Queensland District Registry, General Division" was eventually heard on Monday 28 October 1996. It is dealt with below.
The application by the second respondent for the applicant to provide it with security for its costs was opposed by the applicant. I heard the submissions of counsel for the second respondent and the applicant on this issue on 24 October 1996. I reserved my decision on the application.
Paragraph 5 of the notice of motion of the second respondent did not, by 24 October 1996, raise any live issue between the parties.
Nor, by 24 October 1996, was there any live issue between the applicant and the first respondent as to the obligation of the first respondent to provide a statement in writing of his reasons for decision. Two statements of reasons, each dated 8 October 1996, signed by the Minister, were, by leave, filed in Court on 24 October 1996. The first is a statement of the reasons of the Minister for his decision under s9(1), s10(2), s10(3) and s10(4) of the Conservation Act that consent be given for the second respondent to implement a revised beach and foreshore management plan and to dredge a marina access channel at Oyster Point. The second is a statement of the reasons of the Minister for his decision of 12 August 1996 under par 3.1.1(b) of the Administrative Procedures approved under s6 of the Environmental Protection (Impact of Proposals) Act 1974 (Cth), that neither an environmental impact statement nor a public environment report was required in relation to the proposed entry by the Commonwealth into a deed of variation relating to the proposed development.
CLAIM FOR INTERLOCUTORY RELIEF
The hearing of the applicant's claim for interlocutory relief was commenced on 24 October 1996 but not completed. The hearing was adjourned until Monday 28 October 1966. On that day it became clear for the first time that the second
respondent acknowledged that it was bound by, and, that unless it was released therefrom, it would honour an undertaking given by it to the first respondent that it would not exercise its right to coppice mangroves until construction of a marina access channel forming part of the proposed development had been completed. It is common ground that such marina access channel is not completed and will not be completed for some time. It appears that the second respondent was not informed earlier than during the course of the hearing on 28 October 1996 that the first respondent will not give consideration to releasing the second respondent from its undertaking without a written application having been made to him by the second respondent for such a release. No such written application has been made. Counsel for the first respondent indicated that he was instructed that, if a written application for the second respondent to be released from its undertaking were received by the first respondent, its consideration would take some weeks.
Ultimately, upon certain undertakings being given to the Court by the first and second respondents by their respective counsel, further consideration of par3 of the applicant's application for interlocutory relief was adjourned to a date to be fixed, with the parties being given liberty to apply at short notice. The undertakings given were as follows:
Undertaking of the first respondent:
Until the termination of these proceedings or until further order the first respondent by his counsel undertakes to the court as follows:
That he will notify the solicitor for the applicant at its address for service in these proceedings of his receipt of any application received from the second respondent in which it seeks that the first respondent release it from its assurance to him to defer coppicing of foreshore mangroves until dredging of the marina and access channel has been completed.
That he will give to the solicitor for the applicant at its address for service in these proceedings five days notice of intention to release the second respondent from its assurance to him to defer coppicing of foreshore mangroves until dredging of the marina and access channel has been completed.
Undertaking of the second respondent:
Subject to its right to rely upon the instrument of consent of the First Respondent of 22 August 1996 so far as it gives consent to the removal of fallen mangroves, the Second Respondent undertakes not to coppice, damage or remove living mangroves in the area described as the "mangrove area" in the said instrument of consent or in an area offshore from the boundary of the Second Respondent's property in an area extending from point B in the defined "mangrove area" to the North-Eastern most point of Oyster Point. This undertaking is to continue for seven days after notice has been given to the applicant that the first respondent has released the second respondent from his undertaking of 20 August 1996.
DISQUALIFICATION APPLICATION
Mr Shand made this application in reliance on certain passages of the transcript of the application for interim relief in this matter, and on one passage of the transcript of 4 October 1996.
Upon the application for interim relief coming on for hearing on 2 October 1996, I disclosed to counsel for the applicant that -
"being South Australian Senator Hill is of course known to me although I would not describe him as a close personal friend".
On 4 October 1996 when counsel for the first and second respondents respectively appeared before me for the first time, the following exchange is recorded by the transcript to have occurred:
"HER HONOUR: Before we go further with this matter I should advise all parties what I advised those who appeared for the applicant when the matter was last before me and that is that Senator Hill, whilst I do not think he could fairly be described as a close friend of mind, is a person known to me. We were at university at the same time although not in the same year and he is a person to whom I would speak occasionally in the street. I do not, of my own knowledge, think it is a matter that would warrant my disqualifying myself from hearing this matter but does any counsel wish to take instructions or to raise any matter dealing with that with me?
MR HILTON: I have nothing to say."
Counsel for the second respondent on that day was Mr Dowdy. Although I do not regard it as material to my decision, he acknowledged on 24 October 1996, when appearing with senior counsel for the second respondent, that on 4 October 1996 he joined with Mr Hilton S.C., senior counsel for the first respondent, in not wishing to say anything concerning my knowing the first respondent.
I hesitate in these reasons to use the expression "my relationship with the first respondent" because it might be thought to suggest a more substantial connection than in fact exists between us. However, a convenient alternative phrase does not come easily to mind.
On the issue of my relationship with the first respondent, Mr Shand drew attention to the points of claim filed by the applicant in this proceeding. Paragraph 12 of the points of claim pleads fairly traditional grounds of relief in administrative law, including that the first respondent misdirected himself in respect of his powers under the Conservation Act, that he took into account irrelevant considerations, failed to take into account relevant considerations, exercised his powers in a manner so unreasonable that no reasonable person could have so exercised the powers and denied procedural fairness to the applicant.
Mr Shand characterised the propositions set out in par12 of the points of claim as "fairly pejorative". I accept that in a sense they are, and that they might appear to be the more so to a member of the public not versed in the intricacies of administrative law.
Although it may not be strictly relevant, I note that there is no suggestion that such relationship as I have with the first respondent is other than cordial. In such circumstances, if any party were to feel concern in respect of such relationship, it might be expected to be the applicant, and not the second respondent whose interests are aligned in the
proceeding with those of the first respondent. I put that issue to one side.
In Livesey v New South Wales Bar Association (1983) 151 CLR 288, the Court at 294 stated:
"If a judge at first instance considers that there is a real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance or pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."
See also Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Ors (1994) 52 FCR 48.
The passage set out above from the transcript of 4 October 1996 accurately describes the extent of my relationship with the first respondent. I note that counsel for the first respondent has not suggested otherwise. So far as that relationship is concerned, I am satisfied that there is no real possibility that a fair minded observer, with knowledge of the material objective facts, might entertain a reasonable apprehension that I would be unable to bring an unprejudiced and impartial mind to the hearing and determination of this proceeding by reason of that relationship (Minister for
Immigration, Local Government and Ethnic Affairs & Anor v Mok (1994) 55 FCR 375).
Mr Shand also placed reliance upon remarks concerning Ms Wendy McCarthy made by me during the hearing of the ex parte application for interim relief.
During the hearing of the application for interim relief my attention was drawn to a copy letter dated 9 August 1996 on the letterhead of the Australian Heritage Commission addressed to the first respondent and signed "Wendy McCarthy AO, Chair, Australian Heritage Commission" ("the letter"). At that time the following exchange took place between me and senior counsel for the applicant:
"HER HONOUR: What role does Ms Wendy McCarthy play in this dispute?
MR McCLELLAN: I do not think she plays any in the dispute but of course she ---
HER HONOUR: --- chairs a Heritage Commission.
MR McCLELLAN: Chairs a Heritage Commission which had a role to play in consideration of the application and expressed some quite strong views.
HER HONOUR: She is quite well known to me, Ms McCarthy. Is that likely to cause concern, Mr McClellan?
MR McCLELLAN: Well, not to us. She will never be a party. I should disclose to your Honour, I think ---
HER HONOUR: It would be difficult for me, for example, to make a decision adverse to her credit if you were to invite me to.
MR McCLELLAN: No, that will not arise but your Honour would know that her organisation expressed some strong views.
HER HONOUR: I was not aware of that, no.
MR McCLELLAN: I need to tell your Honour that but they have expressed, I think it is right to say, some strong views in relation to this project.
HER HONOUR: Consistent with your client's views or adverse to your client's views?
MR McCLELLAN: No, consistent with my client's views."
The letter expresses views in opposition to the grant by the first respondent of the consents the subject of this proceeding. For example, its opening paragraph includes the following passage:
"The Commission considers that granting consent for the proposed action would have adverse effects, as outlined in the attachments, on national estate values immediately within the proclaimed world heritage area and potentially significant, long term adverse effects on the national estate values within the wider region."
Later in the letter the following passages appear:
"The Commission believes that your decisions concerning the consents are crucial to the whole of the proposed Port Hinchinbrook development and its wider impacts not just to dredging and foreshore management.
The Commission has formed the view that the proposal is likely to affect to a significant extent places in the National Estate, and to adversely affect important national estate values in those places. Such an outcome is more likely than complete mitigation of significant effects by proposed planning measures ...
...
Should you conclude that there are no alternatives to granting consent for the proposal, then provided the additional measures requested by the Commission are included in the Deed, the Commission considers that adverse effects of the proposal will be substantially mitigated. The Commission is unable to comment on the extent to which adverse effects on the national estate values in the region are mitigated until the Regional Hinchinbrook Management Plan is prepared."
I think it fair to conclude that it is more likely than not that Ms McCarthy holds views consistent with those set out in the letter.
Quite properly, no party has asked me to disclose the extent of my relationship with Ms McCarthy: no suggestion of actual bias has been made. Nonetheless it is, I think, appropriate to record here that I have known Ms McCarthy for approximately 15 years dating from a time when our respective memberships of a national body overlapped for approximately one year. The concerns of that body did not extend to environmental or heritage issues. Since the early 1980s I have seen Ms McCarthy, on average, less frequently than once per year. I have no recollection of our having ever discussed issues concerning the environment or the national estate. We have never discussed the Hinchinbrook Channel or any proposed development at Oyster Point. I was not until the hearing of this proceeding aware that Ms McCarthy was the Chair of the Australian Heritage Commission.
For completeness, I should add that I have friends and relatives whose personal views may fairly be characterised as "pro-development", friends and relatives whose personal views may fairly be described, in colloquial terms, as "green" and friends and relatives whose views apparently fall between those of the two groups which I have already mentioned.
Neither Ms McCarthy nor the Australian Heritage Commission is a party to this proceeding. Ms McCarthy's credit is not in issue in this proceeding. The first respondent, as the evidence before me discloses, took the view that the proposed development at Oyster Point would not, in the circumstances in which he gave consent to the dredging of a marina access channel and to a beach and foreshore management plan, affect to a significant extent a part of the national estate. The Australian Heritage Commission took an opposing view. The respective views taken by the Minister and the Australian Heritage Commission are not open to review on the merits before this Court.
The second respondent placed considerable weight on the majority decision of the New South Wales Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) & Ors (1992) 26 NSWLR 411. The Spedley Securities Case arose out of the assignment to one judge of a series of related cases. In the course of interlocutory proceedings in one of the cases, the judge made findings adverse to the interests of a party, including findings adverse to the credit of certain persons. It was subsequently argued that for his Honour to hear the main proceeding would, in the circumstances, deny that party a fair trial according to law.
Emphasis was placed before me upon the following passage in the reasons for decision of Kirby P at 418-419:
"... the recent holdings of the High Court of Australia evidence a clear tendency to uphold the very high standards of manifest neutrality and impartiality which are to be observed by every judicial officer in the courts of Australia. A common thread has run through the recent decisions to this effect.
Such instruction does no more than to reflect a fundamental principle of the international law of human rights. Article 14 of the International Covenant on Civil and Political Rights provide:
'14.1All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.' (Emphasis added)
There is a growing propensity to interpret the common law in such a way as to conform to such international principles. ...
In this particular respect, however, it is unnecessary to go beyond the common law as locally expressed. The law has moved in a number of important ways to emphasise the stringency which is required, by decisions of the highest courts, of all those who exercise judicial office or have equivalent functions in Australia. Although it was formerly necessary to demonstrate a 'probability' or 'real likelihood' that a reasonable observer would apprehend bias by pre-judgment on the part of the judicial officer concerned, such is not now the case in this country. By repeated decisions of the High Court the test is now expressed in terms of possibilities, that is, whether the parties or the public 'might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudicial mind to the resolution of the question involved ...'; see R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 and Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-298."
Reliance was also placed on the following passage in the reasons for decision of Mahoney JA at 442, with whom Meagher JA agreed, in the Spedley Securities Case:
"In my opinion the present case falls not merely within the words of the principle but within the need to meet which it was formulated. As I have indicated, the pre-judgment principle was formulated in its present form because the public should be reassured that each case will be decided impartially and by reference to its own facts. There are many circumstances which may give rise to an apprehension by such a person that a case will not be so decided: personal bias, interest, a relationship to the parties and unjudicious statements are some of the matters which may give rise to such an apprehension. But the court has, in my respectful opinion correctly, indicated that a previous decision of the same fact or upon the credibility of a relevant witness will create such an apprehension, normally if not inevitably. The effect of the decisions is, in my opinion, to indicate the effect of such a decision in the assessment of the apprehension of partiality by the ordinary person."
In my view, the circumstances of this case are far removed from those considered by the Court of Appeal in the Spedley Securities Case. It is a feature of Australian life that members of the judiciary may be expected to know, at least to some degree, some prominent citizens whose names may be raised during the course of litigation before them. Where no close relationship is involved, and where no issue of the credibility of the person so known arises, I do not consider that an issue of possible bias will ordinarily arise.
I am satisfied that there is no real possibility that a fair minded observer, with knowledge of the material objective facts, might entertain a reasonable apprehension that I would be unable to bring an unprejudiced and impartial mind to the hearing and determination of this proceeding by reason of my relationship with Ms McCarthy.
For the above reasons, on 24 October 1996 I declined to disqualify myself from further hearing this matter.
APPLICATION BY STATE OF QUEENSLAND TO BE JOINED AS A PARTY
By par1 of a notice of motion dated 16 October 1996, the State of Queensland made application to be made a respondent to this proceeding. It did so in reliance on s12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and O6 r8 of the Federal Court Rules. At the close of argument on this application, I allowed the application so far as it was made pursuant to s12 of the ADJR Act but subject to the condition that the State of Queensland would not at any time be entitled to make a claim for costs against any party to the proceeding. The application was otherwise dismissed. I now publish my reasons for decision.
Section 12 of the ADJR Act provides as follows:
"12.(1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application.
(2) The Court may, in its discretion -
(a)grant the application either unconditionally or subject to such condition as it thinks fit; or
(b) refuse the application."
Order 6 r8 of the Federal Court Rules is in the following terms:
"8.(1) Where a person who is not a party -
(a) ought to have been joined as a party; or
(b)is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.
(2)A person shall not be added as an applicant without his consent."
The unchallenged factual background to the application of the State of Queensland includes that the State of Queensland has had extensive involvement in, and expended significant resources on, investigation and facilitation of the proposed development.
The State of Queensland is a party to a deed executed on 29 September 1994 by it, the second respondent and the Council of the Shire of Cardwell ("the Council"). The site of the proposed development is within the Shire of Cardwell. The State of Queensland and the Council required the second respondent to enter into the deed as a condition of the
granting to it of certain permits and approvals. The deed requires the second respondent to comply with certain requirements of the Office of the Co-ordinator General (now the Project and Investment Development Division of the Queensland Department of Economic Development and Trade), the Queensland Department of Environment and Heritage and the Council in respect of the proposed development and construction and other work associated with it.
Following the execution of the deed, the second respondent was granted all remaining permits and approvals required by it under the law of Queensland. Included in such permits and approvals is a permit for the removal of mangroves on the site of the proposed development and the adjacent foreshore. At the time that the deed was executed, the second respondent paid to the State of Queensland certain moneys as bonds with respect of various obligations under the deed. The State of Queensland retains these moneys in anticipation of the proposed development proceeding.
In or about July 1996, representatives of the State of Queensland met with representatives of the department administered by the first respondent in order to discuss measures by which the concerns of the first respondent in respect of the development might be addressed. On 22 August 1996, a deed of variation to the tripartite deed executed on 29 September 1994 was executed by each of the parties to the original deed and by the Commonwealth of Australia.
Evidence was placed before the Court on behalf of the State of Queensland that tourism developments of the kind of the proposed development are vital to the economy of Queensland. Evidence was also placed before the Court of the economic benefits expected to flow from the proposed development to the local community of Cardwell and the State, and of the consistency of the proposal development with the tourism strategy of the State.
I turn first to consider s12 of the ADJR Act. The terms of s12 are set out above.
In United States Tobacco Company v Minister for Consumer Affairs & Ors (1988) 20 FCR 520, the Full Court of this Court, in giving consideration to s12 of the ADJR Act, said at 527:
"The term 'interest' has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person."
In my view, having regard to the factual background against which the application by the State of Queensland is made, the State of Queensland is, within the meaning of s12 of the ADJR Act, a "person interested" in the decision of the Minister which is the subject of the application of review made in this proceeding. The Court thus has a discretion to grant the application of the State of Queensland to be made a party to the application for review, either unconditionally or subject to a condition or conditions, or to refuse the application.
As is discussed below, I do not regard the State of Queensland as a necessary party to this proceeding. It sought of its own motion to be joined as a respondent. It understandably sees it as being in its interest, as well as in the interests (so far as such separation can sensibly be drawn) of the citizens of Queensland generally and of residents of the Shire of Cardwell in particular, for it to be in a position to place evidence and submissions before the Court on the issues to be examined in this proceeding.
Against the interest of the State of Queensland in being joined as a party to the application herein under the ADJR Act are the interests of the other parties in the fair, efficient and timely hearing and determination of this proceeding, and also in the minimisation of the costs of the proceeding. Each of the first and second respondents supported without qualification the application of the State of Queensland to be made a party to the proceeding. I therefore consider it appropriate to give greater emphasis to the interests of the applicant, which opposed the joinder of the State of Queensland, than to the interests of the respondents.
The applicant is an incorporated association. It is not in dispute that it has limited means. In seeking review of the decision of the first respondent, it has raised issues of legitimate public concern relating to the proper administration of the Conservation Act and the Australian Heritage Commission Act 1975 (Cth). The joinder of the State of Queensland as a party to the application under the ADJR Act will necessarily add to its costs of continuing the proceeding. With appropriate case management, the addition of a party ought not to delay the commencement of the hearing of the application for review. However, if, as seems likely, the State of Queensland will be separately represented at trial, its joinder is likely to add, at least to some degree, to the time necessary to complete such hearing and to the cost of such hearing.
Senior counsel for the applicant pointed out that it had not been suggested that the State of Queensland would be able to put before the Court either evidence or submissions which could not be put by one or other of the first or second respondent. This is, in my view, a factor which, along with other factors, it is appropriate for me to take into account in the exercise of my discretion.
On balance, I am of the view that the interests of justice in this case would be served by an order making the State of Queensland a party to the application to this Court under the ADJR Act subject to the condition that it meet all of its own costs as a party.
Does the fact that this proceeding involve causes of action in addition to an application under the ADJR Act mean that the State of Queensland cannot be made a party only to the application under the ADJR Act?
Section 22 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") gives the Court the power in any matter to grant all remedies to which any of the parties appears to be entitled so that, so far as is possible, all matters in controversy between the parties may be completely and finally determined and a multiplicity of proceedings concerning any of those matters avoided. Order 6 r1 of the Federal Court Rules allows an applicant in any proceeding to claim relief in respect of more than one cause of action. The applicant in this case has claimed relief in respect of more than one cause of action.
Nothing in s12 of the ADJR Act, in my view, suggests that it is intended to give a person interested in a decision which is the subject of review under that Act, an unqualified right to be joined as a party to any proceeding in which an application for review of that decision is made. Such proceeding could involve causes of action in which such person has no legitimate interest.
Section 12 of the ADJR Act, in authorising a person interested in a decision to be made a party to an application under the ADJR Act requires, in my view, a distinction to be drawn between the application and the proceeding in which the application is brought. The application under the ADJR Act may be the only cause of action raised by the proceeding. In other cases, of which this is an example, the application under the ADJR Act may be only one of a number of causes of action raised in the proceeding. In a case of this second kind, s12 of the ADJR Act allows, in my view, the joinder of a party for a limited purpose. That is, for the purpose of the ADJR Act application.
So far as the application of the State of Queensland to be made a party to this proceeding was made in reliance on O6 r8 of the Federal Court Rules (see above) it was incumbent on the State of Queensland to satisfy the Court that it "ought to have been joined as a party" or that its joinder was "necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon". This is a more stringent test than that postulated by s12 of the ADJR Act.
The test postulated by O6 r8 of the Federal Court Rules has recently been considered by the Full Court of this Court in News Limited v Super League Pty Limited & Ors (unreported, Full Federal Court, 4 October 1996). The following passage appears at pp138-139 of the reasons for judgment of the Court:
"In relation to a rule based on the precursor to FCR O.6 r.8, Lord Diplock, delivering the opinion of the Judicial Committee of the Privy Council in Pegang Mining Co. Ltd v. Choong Sam [1969] 2 MLJ 52, said this (at 55-56):
'The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships' view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases.
It has been sometimes said as in Moser v. Marsden [1892] 1 Ch. 487 and in In re I.G. Farbenindustrie A.G. [1944] Ch. 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between "legal" and "commercial" interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?'
An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside. Order 6, r.7 is not directed to that type of situation, but to cases where there is a curable defect, for example the misnaming of a party.
The League relied on the majority decision in Finance Corporation of Australia Limited v. Bentley (9 May 1991, NSW CA, unreported), in support of an argument that O.6, r.7 prevented the proceedings being defeated even if the players ought to have been joined. We do not think this decision is an authority for that proposition. The Court of Appeal heard and determined an appeal in the absence of a person who ordinarily would have been joined as a necessary and proper party. But the case was unusual, as the Court accepted assurances from counsel that the third party's interests would not be affected by the outcome of the appeal. In the special circumstances of that case, the majority of the court held that it was appropriate to determine the appeal.
There are some classes of case where the ascertainment of the necessary parties who 'ought to have been joined' is not difficult. Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest. Grovenor v Permanent Trustee Company of NSW Limited is an example of this class of case. Where the subject matter of the proceedings is not of this kind, the ascertainment of necessary parties who ought to have been joined may be more difficult.
In our opinion, the question should be decided according to the test proposed by Lord Diplock. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317, at 322, per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential."
I accept that the State of Queensland is likely to be affected should the relief claimed by the applicant in this proceeding be granted. Nonetheless, even having regard to the terms of the tripartite deed, as varied by the deed of variation, I am not satisfied that its rights against or liabilities to any party to the action in respect of the subject matter of the action will be directly affected by any order which may be made in the action.
For this reason the application of the State of Queensland to be joined as a party to this proceeding was allowed to the extent that it was made pursuant to s12 of the ADJR Act, but dismissed to the extent that it was made in reliance on O6 r8 of the Federal Court Rules. That is, the State of Queensland is made a party to this proceeding only so far as such proceeding involves an application pursuant to the ADJR Act.
In view of the limited joinder of the State of Queensland as a party, on 24 October 1996, having regard to the nature of the applications before the Court on that day, I gave the State of Queensland leave to be heard as an amicus curiae in respect of all matters before the Court on that day on which it did not otherwise have a right to be heard by reason of being made a party to the ADJR Act application. The power of the Court to allow a person to be heard as an amicus curiae is discussed in United States Tobacco Company v Minister for Consumer Affairs & Ors at 535-538.
SECURITY FOR COSTS
On its application for security for costs, the second respondent read:
(a)an affidavit of Joseph Michael Ganim sworn 17 October 1996; and
(b)an affidavit of Stephen Mark Gorry sworn 24 October 1996.
It also placed in evidence a copy letter dated 4 April 1996 from the applicant's auditor to the President of the applicant advising that the only asset of the applicant as at 31 October 1995 was a bank account balance of $1,405.34.
Mr Ganim's affidavit exhibits correspondence between the solicitors for the second respondent and the solicitor for the applicant respectively. By such correspondence, the solicitors for the second respondent sought advice as to what security the applicant could and would provide for the second respondent's costs. The response received was that security for costs was a matter for application to the court.
Mr Gorry's affidavit contains an estimate of the likely costs to be incurred by the second respondent up to, but not including, the costs of a hearing of this matter. Such costs are estimated by him to be likely to amount to approximately $115,000.
The applicant read on the application for security for costs an affidavit of Margaret Grace Thorsborne sworn on 30 September 1996. Ms Thorsborne's affidavit sets out the history of the applicant, its organisational structure and outlines its actions in relation to the environment in the Cardwell area generally, and in relation to the proposed
development in particular. The affidavit contains no material concerning the financial status of the applicant.
Mr Shand sought to cross-examine Ms Thorsborne. Ms Thorsborne was available for cross-examination.
As Nicholson J pointed out in Scanlon v American Cigarette Company (Overseas) Pty Ltd & Anor (No. 1) [1987] VR 261 at 272, there is a clear discretion in a court to permit cross-examination on affidavits or to refuse to allow cross-examination, and in interlocutory matters such discretion is normally exercised somewhat sparingly.
When I advised Mr Shand that I wished to hear him in justification of the request to cross-examine Ms Thorsborne, he advised me that there had been an attempt to short cut the issue in the form of an invitation to counsel for the applicant to concede that the applicant had no significant assets. He agreed that he sought to cross-examine as to the financial means of the applicant in an endeavour to obtain a concession that the applicant did not have assets sufficient to satisfy an order for costs as no concession in that regard had been made by the applicant. Mr Shand advised that he further sought to cross-examine Ms Thorsborne in respect of a submission contained in the applicant's outline of submissions. The paragraph of the applicant's outline of submissions referred to by Mr Shand is in the following terms:
"69.The Court also has power under Order 28 of the Federal Court Rules to order security for costs. However, that power would not be appropriate in the circumstances of this case. In particular, having regard to the objects of the Applicant and its activities (see Affidavit of Margaret Thorsborne sworn 30 September 1996), the Court could not be satisfied that the Applicant is suing not for its own benefit but for the benefit of some other persons. The Applicant seeks to derive its own benefit from the proceedings. There is no evidence that the applicant is merely a nominal applicant put forward as a puppet of another; See Andrews v Caltex Oil (Aust) Pty Ltd (1982) 40 ALR 305 at 307-308."
Mr Shand advised that he wished to test by cross-examination of Ms Thorsborne "whether or not the applicant is indeed acting on behalf of another in these proceedings". He assured me that such cross-examination would not be a "fishing expedition" as he had reason to believe that the applicant was covering for another party. I note that no affidavit evidence on this topic was sought to be read on behalf of the second respondent.
Upon Mr McClellan advising the Court that he was unaware of any request for a concession having been made, I adjourned the Court briefly to allow discussions between representatives of the applicant and the second respondent.
Upon the hearing recommencing, Mr McClellan read certain questions, apparently formulated on behalf of the second respondent, along with his client's responses to such questions, on to the transcript. The transcript records as follows:
"MR McCLELLAN: ... The first question is:
What are the present total current assets and liabilities of the applicant?
My instructions are; approximately $2000 in assets; liabilities are comprised of phone bills between the order of $200 to $300.
The second question is:
What arrangements are in place or proposed for the purpose of meeting the applicant's costs of the proceedings?
Now, the general response to that is that the applicant has no current arrangements except in relation to disbursements incurred by the solicitors; otherwise the solicitors and counsel engaged have been engaged on a pro bono basis with the qualification that if the applicant succeeds and obtains an order for costs then counsel and solicitor would be funded to the extent of any such order as to costs.
The qualification is that my solicitors have agreed with the applicants that, to the extent that they are able, even if they fail in the proceedings, the solicitors would look to the applicants to meet the cost of disbursements. I stress, however, 'to the extent that they are able'.
The third question is:
What prospects of financial assistance, and from whom, does the applicant hope or anticipate -
I assume there should be added 'financial assistance'
will be available to provide for the cost of these proceedings?
Now, subject to what I say in answer to question 5, the appropriate answer to that question at the moment is: there is no current prospect or expectation beyond the capacity to raise moneys in the usual charitable ways. My friend, Mr Shand, and I suggested lamington drives but perhaps in Queensland mango fairs might be more appropriate - but in any event, the usual charitable ways.
The fourth question:
What contribution to the applicant's costs have been made or are to be made by the applicant's members?
The answer to that is that there is no arrangement or present expectation in relation to those matters.
HER HONOUR: Just so that I could understand that, Mr McClellan: beyond their membership subscriptions which presumably form the funds?
MR McCLELLAN: Indeed. Then question 5:
Does any arrangement exist, or is such under discussion, concerning the involvement of the North Queensland Conservation Council in the provision of funds for the purpose of this litigation? If so, what is or are such arrangements and between whom? On the part of the applicant, is the North Queensland Conservation Council, have they been made or are such discussions proceeding?
Again, I think there is something missing from the question but I think the answer will probably deal with that problem.
I am instructed that there have been discussions between the following five groups: the applicant in these proceedings, the North Queensland Conservation Council, the Australian Conservation Foundation, the Wilderness Society and the Australian Rainforest Conservation Society. Those discussions have led to the creation of a Hinchinbrook fighting fund - I am not sure that that is the correct name but that is certainly its intent - which has launched a public appeal and has raised moneys. I understand they may be in the order of $10,000 to $15,000 but that is merely an understanding.
The applicant understands that it has the right to ask for funds from that fighting fund but does not know what the fate of any such application would be. Can I make plain that my understanding is that that fund has been brought into existence to deal with issues in relation to Hinchinbrook but going beyond these proceedings. In other words, it is not a fund which has as its purpose these proceedings although there is the possibility of ---
HER HONOUR: That these proceedings would fall within its purposes?
MR McCLELLAN: Indeed; and that some funds may be made available from those funds. Now, that is the extent to which I can answer the questions."
Mr Shand pressed his application to cross-examine on the basis that he wished to test the answers given to the questions. As to the first of the answers given, it is an answer entirely consistent with the evidence placed before the Court by the second respondent as to the applicant's means. As to the second of the answers, it is a matter within the knowledge of the applicant's legal representatives. In view of the circumstances in which the answer was formulated, I do not consider that the Court would have been assisted by cross-examination of Ms Thorsborne as to that answer. The third question addresses the issue of the applicant's hopes and anticipations as to financial assistance to provide for the costs of this proceeding and the fourth the issue of actual or possible contribution by members of the applicant towards the applicant's own legal costs. Having regard to the answer given to the second question, it seems unlikely that cross-examination of Ms Thorsborne on either of these questions would have assisted the Court on the issue of whether the applicant should provide security for the costs of the second respondent. The answer provided to question five concedes that there have been discussions concerning this proceeding between the applicant and other apparently like-minded organisations. It refers to a public appeal which has resulted in the raising of a "fighting fund" from which the applicant may receive assistance in respect of this proceeding.
Mr Shand agreed with me that as to all of the answers read on to the transcript by Mr McClellan, he could hardly have expected answers more favourable to his client's application. He placed the following rider on his answer -
"... if it turns out that your Honour is not hearing the full story, then your Honour might take a particularly pointed view of the situation and the attitude of the applicant."
I take this answer to mean that Mr Shand wished to have the opportunity to test the credit of Ms Thorsborne whose involvement in the formulation of the answers to the questions was acknowledged.
I formed the view that the application to cross-examine Ms Thorsborne was not made bona fide for the purpose of testing evidence put forward on behalf of the applicant in respect of the second respondent's application for security for costs. Moreover, I formed the view that the cross-examination proposed would have been of limited, if any, assistance to the Court in determining the application. The application to cross-examine Ms Thorsborne was refused.
The jurisdiction of the Court to make an order for security for costs in this matter arises from s56 of the Federal Court Act and O28 of the Federal Court Rules. I do not consider that s1335(1) of the Corporations Law provides an alternative head of power. The applicant is not, in my view, a "corporation" within the meaning of s1335(1) of the Corporations Law (see s57A(4) and s66A of the Corporations Law).
Section 56 of the Federal Court Act provides as follows:
"56(1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him.
(2)The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.
(3)The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.
(4)If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.
(5)This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security."
Order 28 r3(1) of the Federal Court Rules is in the following terms:
"3.(1) Where, in any proceeding, it appears to the Court on the application of a respondent -
(a) [not here relevant];
(b)that an applicant is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the applicant will be unable to pay the costs of the respondent or ordered to do so; or
(c) [not here relevant];
(d) [not here relevant],
the Court may order that applicant to give such security as the Court thinks fit for the costs of the respondent of and incidental to the proceedings."
The wide discretion of the Court to order security for costs pursuant to s56 of the Federal Court Act is not limited by the terms of O28 r3(1) of the Federal Court Rules.
In K P Cable Investments Pty Ltd v Meltglow Pty Ltd & Ors (1995) 56 FCR 189 at 197-198, Beazley J, after pointing out that the discretion to order security for costs is unfettered and should be exercised having regard to all the circumstances of the case without any predisposition in favour of the award of the security, identified a number of guidelines which the Court typically takes into account in determining applications for security for costs. I set out the guidelines identified by her Honour omitting references made by her to the authorities:
"1.That such applications should be brought promptly. ...
2.That regard is to be had to the strength and bona fides of the applicant's case ...
3.Whether the applicant's impecuniosity was caused by the respondent's conduct [the] subject of the claim ...
4.Whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate ...
5.Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security ...
6.An issue related to the last guideline is whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking ...
7.Security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate ..."
Subject to one matter discussed below, I understand her Honour's remarks concerning companies to be equally applicable to incorporated associations.
The current application has been brought promptly.
I deal below with the issue of the strength and bona fides of the applicant's case.
There is no suggestion that the applicant's impecuniosity, which is admitted, was caused by conduct of the respondent.
I am not satisfied that the second respondent's application for security for costs is oppressive in the sense that it is being used merely to attempt to deny the applicant a right to litigate. I conclude, however, that an order for security for costs in anything like the sum sought by the second respondent would prevent the applicant from being able to litigate.
The applicant is an incorporated association of persons concerned with the environment. In one sense, every association is a front for its members: they stand behind it and may be assumed themselves to support the objectives of the association and, generally speaking, the association's actions in intended advancement of those objectives. There is, however, in my view, a very real difference between the relationship of a member of a non-profit association formed to advance a public interest to the association of which he or she is a member, and the relationship of a shareholder to the company in which he or she holds shares. The benefit which a shareholder might expect to obtain from litigation conducted by a company will ordinarily be, whether directly or indirectly, financial. Members of a non-profit association will not ordinarily benefit financially from litigation initiated by the association. The benefit which they might obtain from such litigation is likely to be constituted by intellectual or emotional satisfaction. The fact that the applicant has had discussions with other groups, apparently of a like mind to it with respect to the proposed development, does not mean, in my view, that the applicant is to be regarded, for the purposes of the present application, as suing for the benefit of such groups. If the "fighting fund" referred to by Mr McClellan were of a larger amount, it might constitute a significant factor on this application. However, in view of the disparity between its size and the expected costs of the second respondent, I give it little weight. I do not regard the fifth guideline identified by Beazley J, or O28 r3(1)(b) of the Federal Court Rules, as being of any real relevance in this case.
There is no evidence before me of any personal undertaking to be liable for the costs of the second respondent having been given by any person connected with the applicant, or of any person being willing or able to give such a personal undertaking.
In Charlwood Industries Pty Limited v Cubitt & Ors (unreported, Federal Court, Gummow J, 15 March 1995) his Honour referred, with apparent approval, to the approach taken by Hill J in Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972. In the Equity Access Case Hill J pointed out that if the hearing of the motion for security for costs takes place well before the hearing of the action and before the evidence has been tested, it will be difficult to give detailed consideration to prospects of success. The present is such a case. The application for interlocutory relief has been adjourned part-heard without full argument having been addressed on the applicant's prospects of success. It would be difficult for me to give detailed consideration to the applicant's prospects of success on the present application. I accept, however, that the applicant's case has been brought bona fide and that it is not merely frivolous.
In the Equity Access Case, Hill J took the approach that some weight was to be given in trade practices litigation to the provision of an effective mechanism whereby there may be agitated before the Court issues of contravention of the legislation. So far as this case is concerned, I note that the Conservation Act by s13(5) provides as follows:
"13.(5) Without limiting any other application of the Administrative Decisions (Judicial Review) Act 1977, for the purposes of the application of that Act in relation to a decision of the Minister to give or refuse to give a consent pursuant to section 9 or 10 in relation to particular property:
(a)a person whose use or enjoyment of any part of the property is, or is likely to be, adversely affected by the decision shall be taken to be a person aggrieved by the decision; and
(b)an organisation or association of persons, whether incorporated or not, shall be taken to be a person aggrieved by the decision if the decision relates to a matter which is included in the objects or purposes of the organisation or association and to which activities engaged in by the organisation or association relate."
Section 14 of the Conservation Act, so far as is here relevant, provides as follows:
"14.(1) The High Court or the Federal Court may, on the application of the Attorney-General or of an interested person, grant an injunction restraining a person from doing an act that is unlawful by virtue of section 9, 10 or 11.
(2)Where, pursuant to subsection (1), an application is made to the High Court or the Federal Court for an injunction restraining a person from doing an act, the High Court or the Federal Court, as the case may be, may, if in the opinion of the Court it is desirable to do so, before determining the application, grant an interim injunction restraining the person from doing that act pending the determination of the application.
(3)The reference in subsection (1) to an interested person, in relation to an act that is unlawful by virtue of section 9 or 10 in relation to particular property, shall be read as a reference to:
(a)a person whose use or enjoyment of any part of the property is, or is likely to be, adversely affected by the doing of the act; or
(b)an organization or association of persons, whether incorporated or not, the objects or purposes of which include, and activities of which relate to, the protection or conservation of the property or of property of a kind that includes the property.
..."
The above provisions, in my view, whilst concerned principally with the issue of standing, disclose an intention that legitimate organisations and associations concerned with world heritage properties should be able to agitate before the Court issues arising under ss9 and 10 of the Conservation Act. Organisations and associations of this kind will not infrequently have limited financial means. When considering an application for security for costs in a proceeding involving the Conservation Act, it is legitimate, in my view, for the Court to have regard to the apparent intention of Parliament that such organisations and associations should be able to initiate such litigation.
Another relevant factor is the extent of the risk that the applicant might not be able to meet the respondent's costs if ordered to do so (Charlwood Industries Case; Equity Access Case). In this case there is, as was in effect conceded,
little, if any, prospect of the applicant meeting the costs of the second respondent if ordered to do so.
As Gummow J pointed out in the Charlwood Industries Case (at 16) -
"... in the end, the circumstances must be looked at as a whole, in the light of the general concern for the efficient administration of justice in this Court, manifested in the statute of which s56 is a part."
Having weighed up all of the relevant factors in this case, and having regard to the fact that an order for security for costs in an amount in any way reflecting the likely costs of the second respondent would almost certainly bring this litigation to an end, I consider that the interests of justice require that an order for security for costs not be made.
TRANSFER TO QUEENSLAND REGISTRY AND HEARING IN BRISBANE
The second respondent seeks an order that -
"[t]hese proceedings be conducted and continued in Queensland and transferred to the Court's Queensland District Registry, General Division."
The two aspects of this proposed order can be dealt with separately.
The Court is a national court and may sit to take evidence and hear witnesses in any place in Australia or in a Territory (Federal Court Act s12). It is now commonplace for a matter "the proper place" of which is one District Registry to be heard, either wholly or in part, outside the area of that Registry. I am not satisfied that the New South Wales District Registry was a plainly inappropriate place for this proceeding to be instituted.
Section 48 of the Federal Court Act authorises a change in the "proper place" of a proceeding. It provides as follows:
"48.The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes."
As the Full Federal Court pointed out in National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155 at 162:
"The purpose of the provision in the rules of a 'proper place' is to ensure the orderly and efficient conduct of the Court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding."
The Court went on to identify relevant factors for the purposes of s48 of the Federal Court Act in the following passage:
"The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances.
The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.
The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely."
In this case, the second respondent relies on the following factors in seeking to have this proceeding transferred to the Queensland District Registry of the Court:
"a.the development is in Queensland;
b.the Second Respondent is incorporated in Queensland and carrying on business there.
c.the Applicant is incorporated in Queensland and all of its offices are there;
d.the relevant acts sought to be restrained are in Queensland and all the activities the subject of the case occur in Queensland;
e.all likely witnesses are residents of Queensland and more particularly North Queensland;
f.all the Second Respondent's records and documents are in Queensland and presumably this is also the case for the Applicant;
g.the Second Respondent's Queensland Solicitors have represented the Second Respondent throughout the long history of the matter;
h.inspections and views of the property may be required;"
A strong factor telling against the immediate transfer of this proceeding to the Queensland District Registry of the Court is that I am presently part-heard in respect of the applicant's claim for interlocutory relief. Counsel on that application, other than counsel for the State of Queensland, are counsel resident in Sydney. Each party, other than the State of Queensland, has Sydney based solicitors on the record who have been concerned with such application.
Of ongoing significance is the efficient case management of the proceeding. I have commenced to involve myself in the case management of this proceeding in an endeavour to bring it efficiently to a hearing. In view of the agreement between the parties that this matter ought, if possible, to be heard and determined promptly, and my own judgment that the public interest requires a prompt resolution of the issues raised in this proceeding, I propose provisionally to list the matter for hearing during the week commencing 16 December 1996.
As is mentioned above, no Queensland based judge is available to hear this matter during the week commencing 16 December 1996. A Sydney based judge can be made available to hear the matter that week. Should I not continue the case management of this matter, the judge who is to hear the matter is the obvious alternative judge to do so. Only if the proceeding remains in the New South Wales District Registry of this Court can the continuing management of the case either by me or by the judge who is to hear the trial of this matter conveniently be undertaken.
I have had regard to the factors upon which the second respondent places reliance. Some of them are factors which could carry considerable weight on the issue of where the hearing of this matter should take place. However, on the issue of the "proper place" of the proceeding, in the circumstances of this case, I consider factors relevant to the efficient case management of the proceeding to be more compelling. I decline to order that the proceeding be transferred to the Queensland District Registry of the Court.
I turn to that part of the present application which seeks an order that the hearing of this proceeding take place in Brisbane.
This action is far from ready for trial. The applicant has leave to amend its points of claim. Senior counsel for the applicant has indicated that such points of claim may be significantly amended so as to limit the matters in issue in the proceeding. He has also indicated that consideration is being given on behalf of the applicant to an application pursuant to O29 of the Federal Court Rules for an order for the decision of certain questions separately from other questions.
In such circumstances, it appears to me to be premature to consider where the hearing, or possibly hearings, of this matter may most conveniently be held. I cannot at this stage, for example, judge with any certainty whether oral evidence will need to be called at such hearing or hearings and, if so, from whom.
So far as the second respondent moves for an order that the hearing of this matter be conduced in Queensland, further consideration of the motion is adjourned to a date to be fixed.
SUMMARY
The formal orders to be made are as follows:
Oral application of 24 October 1996 for disqualification
Orders:
Application dismissed.
Costs reserved.
Notice of motion of State of Queensland of 16 October 1996
Orders:
Pursuant to s12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the State of Queensland is made a party to the application to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) subject to the condition that it will not at any time be entitled to make a claim for costs against any party to the proceeding.
Motion otherwise dismissed.
Costs reserved.
Notice of Motion of second respondent of 16 October 1996
Orders:
Further consideration of paragraph 1 of the notice of motion so far as it seeks an order that the hearing of this proceeding take place in Queensland is adjourned to a date to be fixed.
Any party is at liberty to relist the notice of motion for further consideration of paragraph 1 thereof so far as it seeks an order that the hearing of this proceeding take place in Queensland on five days' notice in writing to each other party.
The hearing of this proceeding is expedited.
Motion otherwise dismissed.
Costs reserved.
Applicant's claim for interlocutory relief by application dated 2 October 1996
Orders:
The hearing of this proceeding is expedited.
Further consideration of paragraph 3 of the claim for interlocutory relief is adjourned to a date to be fixed.
Any party is at liberty to relist paragraph 3 of the claim for interlocutory relief for further consideration at short notice.
Claim for interlocutory relief otherwise dismissed.
Costs reserved.
I certify that this and the preceding fifty one (51) pages are a true copy of the reasons for judgment of the Honourable Justice Branson
Associate:
Date: 1 November 1996
Counsel for the applicant: Mr P.D. McClellan Q.C.
appearing with
Mr B.J. Preston
Solicitor for the applicant: James Johnson
Environmental
Defender's Office
Counsel for the first respondent: Mr J.S. Hilton S.C.
appearing with
Mr I.D. Faulkner
Solicitor for the first respondent: Australian
Government Solicitor
Counsel for the second respondent: Mr A.B. Shand Q.C.
appearing with
Mr P.J. Dowdy
Solicitors for the second respondent: Henry Davis York
Counsel for the third respondent: Mr P.A. Keane Q.C.
appearing with
Mrs D.A. Mullins
Solicitor for the third respondent: B.T. Dunphy
Crown Solicitor for
the State of
Queensland
Hearing dates: 24 October 1996
28 October 1996
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12
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