Huon Aquaculture Group Ltd v Minister for the Environment (No 2)

The Minister for the Environment has brought an interlocutory application against Huon Aquaculture Group Ltd, seeking orders to vary existing costs orders and to require Huon to pay the Minister’s costs of the application. The case concerns a dispute over the expansion of fish farming operations in Macquarie Harbour, and the application of the Hardiman principle to the costs orders. The dispute centres on the costs orders made by Kerr J on 6 July 2018, and whether they should be varied to reflect the fact that the Minister was not required to participate in the proceedings after 1 November 2017, due to the presence of appropriate alternative contradictors. The court was required to determine whether the Minister was an appropriate alternative contradictor to Huon's application for judicial review, and whether the costs orders should be varied accordingly. The court found that from 1 November 2017 it was apparent that Petuna and Tassal would be actively opposing Huon’s application, and were appropriate alternative contradictors. As a result, Huon was not required to pay the Minister’s costs beyond 1 November 2017. The court vacated Order 3 of the 6 July 2018 Orders, and ordered that Huon pay the Minister’s costs up to and including 1 November 2017 as agreed or assessed.

The court concluded that it was not necessary to make an order for the costs of the interlocutory application, and that Order 2 did not operate to vary previous costs orders made in the application prior to 6 July 2018. The court found that the Minister was fully entitled to remain a party to the proceedings, and to oppose the application on all available bases, but that the existence of appropriate alternative contradictors meant that Huon should not be required to pay the Minister’s costs beyond 1 November 2017. The court acknowledged that Huon had failed in its application, and was obliged to pay the costs of Petuna and Tassal, but that requiring Huon to pay three sets of costs beyond 1 November 2017 would be an unfair burden. The court emphasised that its conclusion was not intended to reflect adversely on the advocacy of the Minister’s counsel. The final orders made by the court were that Order 3 of the 6 July 2018 Orders be vacated, that Huon pay the Minister’s costs up to and including 1 November 2017 as agreed or assessed, and that Order 2 did not operate to vary previous costs orders made in the application prior to 6 July 2018.