Manning v Chief Executive Officer of the Department of Environment Regulation
[2016] WASC 253 (S)
•13 OCTOBER 2016
MANNING -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION [2016] WASC 253 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 253 (S) | |
| Case No: | CIV:1274/2016 | ON THE PAPERS | |
| Coram: | BEECH J | 13/10/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders in favour of the respondents | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM FRANCIS MANNING ROBERT VERNON PEARCE DOUGLAS CHARLES BLANDFORD KIMBERLEY BRENT ROBERTS TREVOR JOHN STRICKLAND CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION OPAL VALE PTY LTD |
Catchwords: | Practice and procedure Costs Public interest litigation Whether usual rule that costs follow the event should be departed from Turns on own facts |
Legislation: | Nil |
Case References: | Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S) Manning v Chief Executive Officer of The Department of Environment Regulation [2016] WASC 253 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Roe v The Director General, Department of Environmental and Conservation for the State of Western Australia [2011] WASCA 57(S) Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 The State of Western Australia v Collard [2015] WASCA 86 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ROBERT VERNON PEARCE
DOUGLAS CHARLES BLANDFORD
KIMBERLEY BRENT ROBERTS
TREVOR JOHN STRICKLAND
Applicants
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION
First Respondent
OPAL VALE PTY LTD
Second Respondent
Catchwords:
Practice and procedure - Costs - Public interest litigation - Whether usual rule that costs follow the event should be departed from - Turns on own facts
Legislation:
Nil
Result:
Costs orders in favour of the respondents
Category: B
Representation:
Counsel:
Applicants : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Applicants : Sceales & Co
First Respondent : State Solicitor for Western Australia
Second Respondent : Borrello Graham Lawyers
Case(s) referred to in judgment(s):
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S)
Manning v Chief Executive Officer of The Department of Environment Regulation [2016] WASC 253
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v The Director General, Department of Environmental and Conservation for the State of Western Australia [2011] WASCA 57(S)
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
The State of Western Australia v Collard [2015] WASCA 86
- BEECH J:
Introduction
1 On 18 August 2016, I published reasons for decision dismissing the applicants' application to set aside a works approval granted by the first respondent to the second respondent.1 I made orders dismissing the application, and providing for the exchange of submissions in relation to the question of costs.
2 The respondents seek their costs of the application. The applicants seek an order that there be no order as to costs.
The applicants' submissions
3 The applicants submit that the following circumstances, in combination, support a departure from the general rule as to costs:
(1) The application involved a question of interpretation of the provisions of s 54 of the Environmental Protection Act 1971 (WA) (EP Act). The object of the EP Act is the protection of the environment of Western Australia which is a matter of public interest.
(2) The question of whether the CEO was obliged to seek comments from the public on the additional material was a novel question of general importance relating to s 54 of the EP Act.
(3) Given the similarities between s 54 and s 57, the interpretation of s 54 also had significance for s 57.
(4) The applicants' case was arguable; it was not frivolous or lacking in substance or foundation.
(5) The applicants were asserting a right on the part of the public to make comments on the additional material. There was no prospect of personal advantage or gain to the applicants beyond the benefits to the general public.
(6) Success on the part of the applicant would have allowed members of the public, including the applicants, an opportunity to provide comments on the additional material.
(7) There was substantial public interest in the matter given that over 1,000 people had lodged submissions on the original application. That is a large proportion of the population of the Shire of Toodyay.
(8) Given the volume of submissions lodged on the original application and the material, it is likely a substantial number of members of the public would have lodged submissions in relation to the additional material.
Costs - general principles
4 The court has a general discretion to award costs. The starting point in the exercise of that discretion is that, generally speaking, costs will be awarded to the successful party.2 In Oshlack v Richmond River Council,3 McHugh J explained the rationale for this usual position:
The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. 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.
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.
5 The usual rule that costs follow the event is not absolute. A court may depart from it in special circumstances.4 The use of that expression was said by Martin CJ and Murphy JA in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia5 to emphasise the rare and exceptional character of occasions on which it is appropriate to depart from the usual order as to costs.
6 The characterisation as public interest litigation is not in itself sufficient to warrant a departure from the usual order as to costs.6 That imprecise shorthand phrase is inadequate to expose the basis on which the costs discretion is properly exercised.7
7 It has been said that 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation'.8 In Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale,9 the Full Court expressed the view that 'great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner'. Further, in that case, the Full Court said that the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be a rarity.10
8 The fact that a case concerns a question of statutory construction, or that it involves a question of law that will have wider application than to the parties to the action is not in itself sufficient grounds to depart from the ordinary costs rule.11
9 In Roe v The Director General, by a majority, the court departed from the usual order as to costs. The majority considered that in combination, the circumstances justifying that departure were:
(a) the protection of the environment was a matter of public interest;
(b) the proceedings assisted to clarify issues of broad importance under the EP Act;
(c) the applicant had an arguable case that was not lacking in substance or foundation;
(d) the applicant was asserting a public interest without prospect of personal gain or advantage;
(e) there was a special relationship between Aboriginal people, including the applicant, and their land.
10 The absence of any private benefit to the plaintiff is neither necessary nor sufficient ground for departing from the usual order as to costs.12 Nevertheless, the extent to which the public interest predominates over any private benefit, or vice versa, will inform the exercise of the discretion as to costs. If an unsuccessful plaintiff stood to gain significant private benefit from a litigation that will ordinarily weigh heavily against departing from the usual rule as to costs.13
11 In the end, in determining the appropriate orders for costs, all the circumstances of the case must be considered.
The appropriate costs order
12 In my opinion the circumstances of this case do not make it one of those rare and exceptional cases where departure from the usual rule as to costs is warranted.
13 I am not persuaded that the matters to which the applicants point sustain a departure from the usual rule. Broadly speaking, the applicants point to the nature and significance of the issue raised by the application; the fact that their case was arguable and had substance; and the absence of personal advantage to the applicants. In response to the matters raised by the applicants, I would make the following observations.
14 It is true, as the applicants submit, that the application turned on the proper construction of a provision of the EP Act, namely s 54, and that s 57 substantially mirrors s 54. However, many cases involve questions of statutory construction. The fact that a case involves statutory construction, and has a potential significance beyond the parties to the proceedings, is not in itself a sufficient ground to depart from the usual costs rule. I am not convinced that the issue in this case can be seen to have the broad significance for the administration of the EP Act that, for example, existed in Roe v The Director General. The following comments of the Court of Appeal in Commissioner for Equal Opportunity v ADI Ltd14 are broadly applicable to the present case (adapted to take account of the different legislation the subject of those proceedings):
Although the primary issue ventilated in the appeal, being the construction of the Equal Opportunity Act, has a facet which could be characterised as giving rise to an issue which impacts upon the public interest, the proper interpretation of legislation of general application could almost always be characterised in the same way. In our opinion, the issue of statutory interpretation which was raised by the appellants was not special or out of the ordinary, nor unusually complex, difficult or important, nor did it have any characteristic which differentiates it from similar issues of statutory interpretation which are commonly raised in appeals [11].
15 I do not accept that the applicants' contentions in these proceedings as to the proper construction of s 54 of the EP Act had any reasonable foundation. The applicants' contentions ran directly up against fatal textual obstacles.15 When that was pointed out in the course of argument, counsel did not identify any basis in the text of the legislative provision that was capable of sustaining the construction for which the applicants contended.16
16 I accept, as the applicants submit, that the proceedings did not involve a prospect of direct financial gain of the kind in The State of Western Australia v Collard, in which the plaintiffs had claimed substantial damages. However, I do not accept the applicants' assertion that 'there was no prospect of personal advantage or gain in addition to the benefits to the general public'.17 The applicants reside at or own property in close proximity to the property the subject of the works approval and are concerned about the impact of the proposed landfill on their property. In asserting the invalidity of the works approval, the applicants sought to advance their own interests in seeking to overturn the approval already given and to make further submissions with a view to the rejection of the application for works approval. They were entitled to pursue those interests through these proceedings. However, I do not accept that this is a case like Roe v The Director General or Oshlack v Richmond River Council where it can fairly be said that the plaintiff had nothing to gain from the action.
17 For the reasons I have given, I am not satisfied that there is a sufficient reason to depart from the usual rule as to costs.
Conclusion
18 I make the following order:
1. The applicants pay the costs of the first respondent and the costs of the second respondent, each such costs to be taxed if not agreed.
1Manning v Chief Executive Officer of The Department of Environment Regulation [2016] WASC 253.
2Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
3Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (footnotes omitted).
4Roe v The Director General, Department of Environmental and Conservation for the State of Western Australia [2011] WASCA 57(S) [12].
5Roe v The Director General [13].
6Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 [14], [19], [21]; Roe v Director General [12]; The State of Western Australia v Collard [2015] WASCA 86 [28] - [29].
7Ruddock v Vadarlis [19]; The State of Western Australia v Collard [28].
8Oshlack v Richmond River Council [134].
9Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 [11], cited with approval in Roe v The Director General [13] and in The State of Western Australia v Collard [30].
10Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [11]; The State of Western Australia v Collard [30].
11The State of Western Australia v Collard [32], [59].
12The State of Western Australia v Collard [46].
13The State of Western Australia v Collard [46].
14Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S) [11], cited with approval in The State of Western Australia v Collard [44].
15 See Manning v CEO [26] - [30], [35] - [37].
16 ts 5 - 8.
17 Applicants' submissions [13(6)].
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