Jacob v Save Beeliar Wetlands (Inc)
[2016] WASCA 126 (S)
•1 NOVEMBER 2016
JACOB -v- SAVE BEELIAR WETLANDS (INC) [2016] WASCA 126 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 126 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:3/2016 | ON THE PAPERS | |
| Coram: | McLURE P BUSS JA NEWNES JA | 1/11/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Respondents to pay first and second appellants' costs of proceedings at first instance First respondent to pay the first and second appellants' costs of appeal First respondent to pay third appellant's costs of application for urgent appeal order | ||
| B | |||
| PDF Version |
| Parties: | THE HON ALBERT JACOB MLA, MINISTER FOR ENVIRONMENT ENVIRONMENTAL PROTECTION AUTHORITY COMMISSIONER OF MAIN ROADS SAVE BEELIAR WETLANDS (INC) CAROLE DE BARRE |
Catchwords: | Costs Public interest litigation Appeal against decision that Environmental Protection Authority (EPA) had committed jurisdictional error Environmental assessment of proposal to extend Roe Highway Whether EPA policies were mandatory relevant considerations in assessment Appeal allowed Whether costs order should be made First respondent not-for-profit organisation Personal benefit to members Relevance of litigation to future administration of Act |
Legislation: | Nil |
Case References: | Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55 Commissioner of Taxation v B & G Plant Hire Pty Ltd (1994) 52 FCR 257 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 154 ALR 411 South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (No 2) (1995) 86 LGERA 382 The State of Western Australia v Collard [2015] WASCA 86 William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JACOB -v- SAVE BEELIAR WETLANDS (INC) [2016] WASCA 126 (S) CORAM : McLURE P
- BUSS JA
NEWNES JA
- First Appellant
ENVIRONMENTAL PROTECTION AUTHORITY
Second Appellant
COMMISSIONER OF MAIN ROADS
Third Appellant
AND
SAVE BEELIAR WETLANDS (INC)
First Respondent
CAROLE DE BARRE
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTIN CJ
Citation : SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482
File No : CIV 2445 of 2015
Catchwords:
Costs - Public interest litigation - Appeal against decision that Environmental Protection Authority (EPA) had committed jurisdictional error - Environmental assessment of proposal to extend Roe Highway - Whether EPA policies were mandatory relevant considerations in assessment - Appeal allowed - Whether costs order should be made - First respondent not-for-profit organisation - Personal benefit to members - Relevance of litigation to future administration of Act
Legislation:
Nil
Result:
Respondents to pay first and second appellants' costs of proceedings at first instance
First respondent to pay the first and second appellants' costs of appeal
First respondent to pay third appellant's costs of application for urgent appeal order
Category: B
Representation:
Counsel:
First Appellant : No appearance (on the papers)
Second Appellant : No appearance (on the papers)
Third Appellant : No appearance (on the papers)
First Respondent : No appearance (on the papers)
Second Respondent : No appearance (on the papers)
Solicitors:
First Appellant : State Solicitor for Western Australia
Second Appellant : State Solicitor for Western Australia
Third Appellant : State Solicitor for Western Australia
First Respondent : Castledine Gregory Law and Mediation
Second Respondent : Castledine Gregory Law and Mediation
Case(s) referred to in judgment(s):
Attrill v Richmond River Shire Council (1995) 38 NSWLR 545
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55
Commissioner of Taxation v B & G Plant Hire Pty Ltd (1994) 52 FCR 257
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S)
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 154 ALR 411
South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (No 2) (1995) 86 LGERA 382
The State of Western Australia v Collard [2015] WASCA 86
William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975
1 McLURE P: I am in the minority on the issue of costs. In my opinion there should be no order for the payment of the costs of the application or the appeal. As the background is detailed by the majority, I can briefly state my reasons.
2 Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) give this court a discretion to award costs, which discretion is confined solely by reference to the purpose and objective of the power. The rule (of practice not law) in civil proceedings is that, in the absence of special circumstances, costs should follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72. There are special circumstances in this case.
3 The sole objective and purpose of the litigation was to challenge the legality and thus validity of the EPA's recommendation in its Assessment Report made under s 44 of the Environmental Protection Act 1986 (WA) (EPA Act) that the Roe 8 extension proposal could proceed (subject to the implementation of recommended conditions) even though it would result in significant residual impacts to 'critical assets'. The expression critical assets is defined in the Assessment Report as the most important environmental assets in Western Australia. By any measure, the litigation involved very significant issues of general public interest. Those public interests are not confined, geographically or otherwise.
4 It was not the respondents' case that the EPA's recommendation itself was beyond power. The focus of the challenge was on process and procedural errors. The only reasonably arguable outcome of the litigation was that the EPA would be required to reconsider the Roe 8 extension proposal. That relief would have no direct operative or practical effect on either respondent. It is proper to characterise the proceedings as public interest litigation. The nature and extent of the public interests in this case place it at the high end of the scale of litigation of that character.
5 If motivation is relevant (contra Kirby J in Oshlack), I accept the submission that the respondents' primary motivation for bringing the proceedings was the acknowledged damage to the State’s critical environmental assets. The physical proximity of the second respondent and a number of members of the first respondent to the proposed Roe 8 extension is clearly linked to the requirement to establish standing.
6 Further, the litigation raised wide ranging significant issues going to the interpretation and administration of the EPA Act and its Administrative Procedures, the resolution of which has contributed to the proper understanding of the relevant law and practice. That is of broad benefit to the government parties, particularly those responsible for the administration of the legislative framework.
7 Finally, it is significant that the 'hooks' on which the challenge was based stem from ambiguity in the purpose and content of policies generated by the EPA and the EPA's departure from its earlier position in Bulletin 1088.
8 BUSS & NEWNES JJA: On 15 July 2016, this court allowed an appeal from a decision of Martin CJ in which his Honour had found that in assessing the third appellant's proposal to extend the Roe Highway, the Environmental Protection Authority (EPA) had committed jurisdictional error by failing to take into account three EPA policies that were mandatory relevant considerations under the Environmental Protection Act 1986 (WA) (the Act). His Honour made orders quashing the Assessment Report of the EPA and the decision of the Minister for Environment (the Minister) that the third appellant's proposal may be implemented.
9 We concluded that the policies were not mandatory relevant considerations and set aside his Honour's orders.
10 An issue has now arisen as to the costs of the proceedings before the primary judge and of the appeal. The parties have each provided written submissions on the issue, which is to be determined on the papers.
Background
11 For present purposes the relevant background can be sufficiently summarised as follows.
12 In April 2009, the third appellant referred to the EPA a proposal to extend Roe Highway by approximately 5 km from its current terminus at the Kwinana Freeway in Jandakot to Stock Road in Coolbellup (the Roe 8 proposal). Section 44 of the Act required the EPA to report to the Minister on the outcome of its assessment of a proposal.
13 The proposed extension of the Roe Highway is largely located within a primary regional road reserve in the Metropolitan Region Scheme that has been in existence since 1963. The road reservation runs between North Lake and Bibra Lake, which are within the Beeliar Regional Park. The Beeliar Regional Park is created around two chains of wetlands.
14 In its Assessment Report, the EPA noted that, after taking all reasonable and practical measures to avoid and minimise the potential impacts of the proposal, there remained significant residual impacts, so that environmental offsets were necessary. The residual impacts identified included impacts to Conservation Category Wetlands (CCWs) in the Beeliar Regional Park. It noted that CCWs (among other things) were a 'critical asset' in accordance with the EPA's Position Statement 9.
15 The EPA concluded that the Roe 8 proposal could be managed to meet the EPA's objectives subject to the implementation of recommended conditions, including environmental offsets.
16 In reliance upon the EPA's Assessment Report, the Minister decided to allow the Roe 8 proposal to be implemented, subject to conditions that he specified.
17 The first respondent is an incorporated association which has, as its primary objective, 'to engage in political, community, legal and other processes to protect the wetlands' through which the proposed extension in the Roe 8 proposal would be constructed. It is opposed to the Roe 8 proposal. The first respondent has 100 members, of whom 31 live in suburbs adjoining what is described as the 'development envelope' of the Roe 8 proposal. The second respondent's property is located some 20 - 25 m from the boundary of the development envelope.
18 The respondents commenced proceedings challenging the validity of the decision of the EPA and the decision of the Minister that the Roe 8 proposal may be implemented. They sought to have the Assessment Report and the decision of the Minister quashed.
19 The respondents contended, among other things, that the EPA had committed jurisdictional error by failing to take into account mandatory relevant considerations, being three EPA policies: Position Statement 9; Guidance Statement 19; and EPA Bulletin No 1. Position Statement 9 stated that there was a presumption against recommending approval for proposals that were likely to have significant adverse impacts 'to critical assets'. It also stated that the EPA did not 'consider it appropriate to validate or endorse the use of environmental offsets where projects are predicted to have significant adverse impacts to … wetlands [including CCWs].' Guidance Statement 19 stated that the EPA would adopt a presumption against recommending approval of proposals or schemes where significant adverse environmental impacts affect critical assets. EPA Bulletin No 1 was to similar effect.
20 The primary judge found that, whilst the Act did not expressly require those policies to be considered, on its proper construction the EPA was bound to take them into account as a condition of a valid exercise of the jurisdiction to assess and report to the Minister on the proposal. The primary judge granted the substantive relief sought by the respondents and ordered the first and second appellants to pay 75% of the respondents' costs of the proceedings, to be taxed if not agreed.
21 On an appeal by the appellants, this court came to the contrary view, concluding that the express provisions of the Act left no room for an implication that any of the policies were a mandatory relevant consideration. McLure P (with whom we agreed) considered that, most significantly, pt III of the Act made provision for the formulation by the EPA of policies to be approved by the Minister following a lengthy process of consultation with all stakeholders. The approved policies were express relevant considerations in the EPA's assessment and recommendations under s 44 of the Act. It could not have been intended that the EPA would have the power to make its own policies which it was then impliedly required to take into account in the performance of its duties under s 44 of the Act [55] - [56]. The structure of the decision-making process in relation to proposals to which s 44 applied was also inconsistent with an implication that policies generated by the EPA outside that process were intended to be mandatory relevant considerations [57].
22 The first respondent had also filed a notice of contention seeking to uphold the decision of the primary judge on grounds not relied upon by his Honour. The notice of contention was dismissed.
23 The first and second appellants seek orders that:
1. the respondents pay their costs of the proceedings at first instance; and
2. the first respondent pay their costs of the appeal.
24 The third appellant seeks an order that the first respondent pay his costs of an urgent appeal order application.
25 The respondents oppose any order for costs being made.
The submissions of the parties
26 The respondents contended there were special circumstances in this case justifying a departure from the general rule that a successful party is entitled to its costs. Put shortly, the respondents contended that the proceedings involved what is described as 'public interest litigation'. The respondents argued there should be no order as to costs. The circumstances they alleged supported that contention were as follows.
27 First, their case was not frivolous or lacking in substance, as demonstrated by their success at first instance, and it raised complex issues.
28 Second, the respondents stood to derive no personal, private or financial gain from the proceedings. Their primary motivation was a concern for environmental protection and the likely effect of the proposal to extend the Roe Highway on the Beeliar Regional Park's environmental, biodiversity, scenic and recreational values. The proceedings were concerned with the enforcement of legislation enacted for the public benefit.
29 Third, the proceedings had implications for the broader community and there had been widespread interest by the public in the outcome of the litigation. The implications for the community included the protection of the environment within the State and the correct procedures for environmental impact assessment in Western Australia. The decision at first instance had led to an independent review of policies and guidelines for environmental impact assessment under the Act.
30 Fourth, the action, if successful, would have clarified the requirements for conducting an environmental impact assessment under the Act for anyone referring or commenting on a proposal.
31 Fifth, the first respondent was a not-for-profit organisation and had no economic incentive to commence the proceedings.
32 Sixth, the proceedings raised significant and novel issues of general importance as to the interpretation and administration of the Act, namely, whether policies (apart from pt III policies) developed by the EPA are mandatory relevant considerations.
33 The respondents further submitted that they had brought the proceedings to advance a legitimate public interest, and the proceedings had contributed to a proper understanding of the law regarding environmental impact assessments, so that the costs should properly be regarded as incidental to the proper exercise of public administration.
34 The appellants submitted, first, that there were private interests involved on the respondents' side. Of the 100 paid members of the first respondent, 31 lived in suburbs adjoining the development envelope of the Roe 8 proposal and the second respondent's property was located some 20 - 25 m from the boundary of the development envelope. Second, whether something is in the public interest is to be determined by an examination of the legal issues or contentions involved, not by whether members of the public are interested in the outcome. And even if it were accepted that the respondents sought to advance the public interest, that of itself is not sufficient. Third, nor is it sufficient that a decision assisted to some degree in public administration. Many decisions of the court have that effect. In this instance, the issue was not one of general importance for the administration of the Act, but involved simply an orthodox question of statutory construction relating to policies that had ceased to operate before the proceedings were commenced. Fourth, the respondents had been wholly unsuccessful in the appeal.
35 The appellants submitted that when all the relevant factors are taken into account they do not justify a departure from the usual order as to costs.
The disposition of the application
36 The basis of the general principle that the successful party will be entitled to an order for its costs, enshrined in O 66 r 1 of the Rules of theSupreme Court 1971 (WA) (see also r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA)), was explained by McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72:
The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation [67].
37 Whether the circumstances of a case falling under the general rubric of 'public interest litigation' justify a departure from that principle involves a balancing exercise by the court. That exercise requires attention to be focused on the particular circumstances of the case said to justify such a departure. Simply to describe a case as 'public interest litigation' serves no purpose. As Black CJ and French J (as his Honour then was) observed in Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229:
To say of a proceeding that it is brought 'in the public interest' does not of itself expose the basis upon which the discretion to award or not award costs should be exercised [19].
38 It is also necessary that great care be taken to ensure that such a concept does not become an umbrella for the exercise of the discretion as to costs in an 'unprincipled, haphazard and unjudicial manner'; the denial of costs to a successful litigant upon the ground that the litigation bears a public interest character should be a rarity: Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55 [11].
39 The circumstances that will justify a departure from the usual order as to costs on the ground that the proceedings were in the public interest are not susceptible of comprehensive description. Each case will turn on its own facts. It will not, however, be sufficient simply that the proceedings were brought otherwise than for the personal or financial benefit of the plaintiff - although, on the other hand, where the plaintiff stood to gain significant private benefit from the litigation that will ordinarily weigh heavily against departing from the usual rule as to costs: The State of Western Australia v Collard [2015] WASCA 86 [46]. Nor will it be sufficient that the case raised for the first time the meaning or operation of a legislative provision in which there was a public interest in the outcome, or that it resolved a conflicting line of authority, or that it otherwise had a wider legal importance than it has to the individual litigants, as that is an inherent feature of common law litigation: Oshlack [75]; William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; Collard [32]. And whether litigation bears a public interest character is not determined by the degree of interest in it shown by members of the public but objectively by the extent to which it serves the public interest.
40 As this court observed in Collard (at [38]), there are cases where the court has departed from the usual order as to costs in litigation which has involved the proper construction of statutory provisions of significant public import on the basis that the proceedings were 'public interest' litigation. But the exceptional nature of such an outcome has been repeatedly emphasised. A feature in some of the cases has been that the successful party denied an order for costs derived a significant benefit from the litigation in the clarification of a statutory provision of ongoing importance to its regulatory or other public functions.
41 Thus, in Commissioner of Taxation v B & G Plant Hire Pty Ltd (1994) 52 FCR 257, the Commissioner had applied to set aside a deed of arrangement which purported to bind the creditors of the first respondent to accepting 40 cents in the dollar. The Commissioner contended that the debt owing in respect of tax was granted priority by s 221P of the Income Tax Assessment Act 1936 (Cth) and thus stood out of the arrangement. The Commissioner was successful but no order as to costs was made, the court saying simply that the case was 'in the nature of a test case. Important questions arose concerning both the Corporate Law Reform Act and the Tax Amendment Act.'
42 InAttrill v Richmond River Shire Council (1995) 38 NSWLR 545, the appellants had brought a claim against the respondent for damage caused by flooding. A separate trial was ordered on, relevantly, whether s 582A of the Local Government Act1919 (NSW) was a complete defence to the claim for damages. Section 582A provided that a council was not liable for any act or omission in good faith in relation to the likelihood or extent of flooding of any land. The respondent was successful at first instance on this issue, and an appeal by the appellants against that decision was dismissed. On costs, by a majority (Kirby P and Clarke JA, Powell JA dissenting) the court concluded that there should be no order as to the costs of the appeal, the issue being one of importance to local government, there having been a conflict of authority on the proper construction of s 582A, and its determination being in the public interest (556).
43 In Ruddock v Vadarlis (No 2), the Victorian Council of Civil Liberties (VCCL) and Mr Vadarlis had commenced proceedings against the Minister for Immigration and Multicultural Affairs, the Commonwealth and others, seeking habeas corpus and mandamus to compel the release and delivery into Australia of a group of non-citizens said to be detained on a vessel, MV Tampa, off the coast of Christmas Island. The primary judge made the orders sought but was reversed on appeal. The Full Federal Court, by a majority (Black CJ and French J, Beaumont J dissenting), concluded that there should be no order as to costs at first instance or on the appeal. The majority described it as 'a most unusual case', involving 'matters of high public importance and rais[ing] questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights' [29]. On the question of costs, they took into account that the case raised novel and important questions of law concerning the alleged deprivation of liberty of the individual, the executive power of the Commonwealth, the operation of the Migration Act 1958 (Cth), and Australia's obligations under international law (matters on which they noted that judicial opinion was divided), and that there had been no financial gain for the VCCL or Mr Vadarlis in bringing the proceedings [28].
44 In BlueWedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211, the applicant challenged the validity of a decision of the Federal Minister to approve dredging of Port Phillip Bay and the Yarra River in Victoria, contending, amongst other things, that the environmental impact assessment did not adequately assess the relevant impacts of the project or provide enough information for the Federal Minister to make an informed decision. The challenge failed. The applicant represented the interests of over 65 community and environment groups and qualified for the express conferral of standing under s 487(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to bring such proceedings. Heerey J made no order as to costs, on the basis that the matter was of high public concern, the application raised novel questions of general importance as to the approval process under the legislation, and there was a public interest in the approval decision and whether it had been reached according to law.
45 But as we have said, such cases are exceptional, an outcome consistent with the view of the Full Court in Buddhist Society of Western Australia.
46 In this jurisdiction, in South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (No 2) (1995) 86 LGERA 382, the appellant, in reliance upon the Actand the Conservation and Land Management Act 1984 (WA), had sought orders nisi for writs of certiorari and prohibition to quash decisions of the first respondent relating to an amendment to a regional forest management plan and to prohibit the respondents from giving effect to the plan. The application failed at first instance and an appeal against that decision was dismissed. On costs, the court rejected a submission by the appellant that the court was justified in departing from the usual order as to costs on the ground that important legal questions were raised for determination in the public interest. It held there were no special circumstances which justified any departure from the usual order as to costs.
47 A similar approach was taken in Buddhist Society of Western Australia,where the applicant had applied for an order nisi for a writ of prohibition in respect of what was said to be a decision which it anticipated the first respondent would make to grant an extractive industries licence to the second respondent. The application was dismissed by the Full Court. The applicant opposed a costs order being made against it on the ground that the proceedings were 'public interest litigation'. That submission was rejected.
48 In Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S), however, this court, by a majority (Martin CJ, Murphy JA; Buss JA dissenting), concluded that the court should depart from the usual order as to costs. In that case, the court dismissed two applications by the applicant challenging decisions by the Director General of the Department of Environment and Conservation to grant permits to Woodside Energy Ltd and to the Commissioner of Main Roads to clear native vegetation in the Kimberley region. The majority considered that, in combination, the following circumstances in those proceedings justified a departure from the usual order as to costs, namely: the protection of the environment was a matter of public interest; the proceedings assisted to clarify issues of importance under the Act; the applicant had an arguable case; the applicant was asserting a public interest without prospect of personal gain or advantage; and there was a special relationship between Aboriginal people (of whom the applicant was one) and their land. No order as to costs was made.
49 Having regard to all of the relevant circumstances, we are not persuaded that this is one of those exceptional cases where the circumstances justify a departure from the usual order as to costs. There are several factors in particular that weigh against such a departure.
50 There was, on the respondents' side, a significant element of private benefit involved. As the appellants have pointed out, almost one-third of the paid members of the first respondent live in suburbs adjoining the development envelope of the Roe 8 proposal and the second respondent's property is located some 20 - 25 m from the boundary of the development envelope. In an affidavit in support of the application to quash the EPA's recommendation, the second respondent explained that her reason for opposing the Roe 8 proposal was the loss of her enjoyment of the wetlands, and the effect it may have on her health and well-being and the value of her house. It may be inferred that some at least of the 31 members of the first respondent living in adjacent suburbs were motivated not only by general concerns about the environmental impact of the Roe 8 proposal on the wetlands but also by the potential loss of their personal amenity. While the proceedings could not finally determine whether the Roe 8 proposal went ahead, the respondents stood to gain at least the benefit of a reconsideration of the environmental approval that had opened the way for it to proceed.
51 The private benefit involved went substantially beyond what was necessary for the respondents to establish as a sufficient interest to bring the proceedings.
52 It is also not evident that the point in issue in the proceedings was, as contended by the respondents, one of importance for the appellants in the future administration of the Act or for anyone referring or commenting on a future proposal that was subject to an environmental impact assessment. The policies in issue in the proceedings had no statutory force and had ceased to operate before the proceedings were commenced. There is also no suggestion that in the administration or application of the Act the relevance of those policies or other non-approved policies had previously been a matter of controversy or concern that called for resolution. Certainly the point in issue was not a matter on which there had been a division of judicial opinion before the proceedings had been commenced. The respondents had simply pursued, amongst other legal points, a novel legal point in furtherance of their endeavour to overturn the environmental approval for the project - a point that was found on appeal to be without merit. While no doubt many members of the public were interested in whether the Roe 8 proposal would proceed, some in favour and some against, that is distinct from issues going to the details of the procedures involved in the approval process.
53 And at least at first instance the respondents apparently did not regard it as litigation of a kind that made it appropriate that each party should bear their own costs. The respondents engaged counsel and solicitors, and they sought, and the primary judge awarded them, costs against the appellants in respect of the proceedings at first instance.
54 The fact that the first respondent was a not-for-profit organisation, the majority of whose members, at least, did not stand to gain any private benefit from the litigation, is not a matter of great weight. As Kirby J pointed out in Oshlack, 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation' [134]: see also South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 154 ALR 411 [5]. Individuals or organisations, however well-intentioned, who embark upon litigation to pursue an objective of interest or concern to them in relation to the environment, or any other matter affecting the public more generally, cannot expect that, if unsuccessful, they will ordinarily be relieved of the risks as to costs involved in litigation. The well-meaning volunteer who pursues their own perception of the public interest through litigation does not have an entitlement to a 'free kick' on costs.
55 As the authorities make clear, it will be an exceptional case where a successful party to such proceedings will be required to bear its own costs. This is not one of those cases.
56 The first respondent resists, on a different ground, the third appellant's application for an order for its costs of the application for an urgent appeal order. It submits that, while the first respondent was served with the application, it was dealt with ex parte before the first respondent was in a position to respond to it and therefore the first respondent played no part in it. (In fact, the application was granted administratively by the court without a hearing.)
57 It is not disputed that the application was properly brought. To the extent the third appellant incurred costs that it is entitled to recover on taxation in respect of the application, there is no reason why they should be treated other than as costs of the appeal and therefore recoverable by the third appellant. Whether there are such costs will be a matter for the taxing officer.
Conclusion
58 The appropriate orders are that:
1. the respondents are to pay the first and second appellants' costs of the proceedings at first instance; and
2. the first respondent is to pay the first and second appellants' costs of the appeal; and
3. the first respondent is to pay the third appellant's costs of the application for an urgent appeal order; and
4. if the amount of any of the costs is not agreed, those costs are to be assessed by a taxing officer.
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