Manning v Chief Executive Officer of the Department of Environment Regulation - [2016] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MANNING -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION [2016] WASC 253

CORAM: BEECH J

HEARD: 8 AUGUST 2016

DELIVERED : 18 AUGUST 2016

FILE NO/S: CIV 1274 of 2016

BETWEEN: WILLIAM FRANCIS MANNING
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:

Administrative law - Environmental protection - Application for works approval - CEO obliged to seek comments on and to advertise application - After application received CEO subsequently required further information - CEO received additional information in response - Whether CEO obliged to seek comments on and to advertise the additional information

Legislation:

Environmental Protection Act 1986 (WA), s 54

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants:     Dr J J Hockley
First Respondent           :     Mr C S Bydder
Second Respondent      :     Mr J C W Skinner

Solicitors:

Applicants:     Sceales & Co
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     Borrello Graham Lawyers

Case(s) referred to in judgment(s):

City of Kwinana v Lamont [2014] WASCA 112
Eclipse Resources Pty Ltd v CEO, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353
Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116
Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Commissioner for Corrective Services v RAJ [2014] WASC 338
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
BEECH J:

Introduction

The applicants seek to set aside a works approval granted by the first respondent (the CEO) to the second respondent (Opal Vale) in relation to a proposed landfill site. The grounds of the application are that the CEO failed to comply with s 54(2)(b) of the Environmental Protection Act 1986 (WA) (the Act) in failing to seek comments on additional documents lodged by Opal Vale after the initial application was made, and that the CEO failed to comply with s 54(2a) of the Act in not advertising those additional documents. For the reasons that follow, I am not persuaded that the Act requires the CEO to seek comments on or to advertise additional documents lodged after an initial application. Consequently, I would dismiss the application.

The facts

The facts are not in dispute.
On 22 December 2014 Opal Vale lodged an application for the grant of a works approval with the Department of Environment Regulation (DER). The application was made pursuant to s 54 of the Act in relation to a proposed class II landfill at a site in Toodyay. The application was approximately 700 pages including appendices.
On 30 January 2015 DER wrote to each applicant to notify them of the application and invited them to make submissions (see, for example, TB 701).
On 2 February 2015 the application and all of the supporting documentation lodged with the application were made publicly available on the DER website.
On 2 February 2015 DER advertised the application in the West Australian Newspaper (TB 702) and on 4 February 2015 in the Toodyay Herald (TB 703).
By 6 March 2015 each of the applicants had lodged a submission or were signatories to a submission lodged on behalf of the Toodyay community.
The CEO did not seek any further comments from the applicants in relation to the application, and there were no further advertisements.
On 26 March 2015 DER wrote to Opal Vale requesting further information. In its letter DER indicated it had placed the works approval application on hold until the information was provided, and that information provided in response to the letter would assist DER in its decision to either refuse or grant a works approval under s 54(3) of the Act.
On 14 May 2015 consultants on behalf of Opal Vale wrote a letter to DER attaching documents. The attachments included an updated environmental ground water assessment, a landfill management plan, an asbestos management plan, a fire management plan, a rehabilitation management plan and a dust management plan. None of those documents had been provided with the application when initially lodged.
On 19 June 2015 DER wrote a second letter to Opal Vale requesting further information. The DER's letter stated that it had reviewed the response provided in the letter of 14 May 2015 and had determined sections of the response were insufficient to address the questions and/or reduce uncertainty to acceptable levels.
On 5 July 2015 consultants on behalf of Opal Vale wrote a letter to DER attaching documents, some of which were new and others of which were the same as the attachments to the letter of 14 May 2015.
On 16 July 2015 Opal Vale lodged with DER an addendum to a report already provided.
On 27 August 2015 a delegate of the CEO granted works approval to Opal Vale.

The application

The applicants contend that the CEO was required to seek comments from the applicants on, and to advertise, the additional documents sent by Opal Vale to the CEO on 14 May 2015, 5 July 2015 and 16 July 2015 (the Additional Documents), and that, because the CEO failed to do so, the works approval is invalid.

The issues

The parties agree that the following are the issues:
(1)was the delegate of the CEO required to seek further comments pursuant to s 54(2)(b) of the Act, and take any comments received into account in deciding whether to grant or refuse to grant a works approval under s 54(3) of the Act, in relation the Additional Documents?;
(2)was the delegate of the CEO required, pursuant to s 54(2a) of the Act, to advertise the Additional Documents in the prescribed manner, inviting any person who wished to comment on them to do so within such period as was specified in the advertisement, and to take any comments received into account in deciding whether to grant or refuse to grant a works approval under s 54(3) of the Act?;
(3)if the answer to either or both of issues (1) and (2) is yes, is it a purpose of the Act that a works approval granted in breach of that requirement should be invalid?;
(4)if the answer to either or both of issues (1) or (2) is yes, and the answer to issue (3) is yes, should the court decline to grant certiorari in the exercise of its discretion?

The legislation

Division 3 of pt V of the Act provides for occupiers of prescribed premises to obtain works approvals and licences to avoid committing offences against the Act.
Section 52 and s 53 create offences for the occupier of prescribed premises including, under s 53, to undertake activities which may cause an emission.
An occupier does not commit an offence against these sections if the occupier holds a works approval and acts in accordance with any conditions to which that approval is subject: see s 52 and s 53(f)(i).
Section 54 provides as follows:
Works approvals, applying for, granting, refusing etc.
(1)An application for a works approval shall be ‑
(a)made in the form and in the manner approved by the CEO; and
(b)accompanied by such fee as is prescribed by or determined under the regulations; and
(c)supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.
(2)On receiving an application made under subsection (1), the CEO shall ‑
(a)if that application does not comply with that subsection, decline to deal with that application and advise the applicant accordingly; or
(b)if that application complies with that subsection, advise the applicant that his application has been received and seek comments thereon from any public authority or person which or who has, in the opinion of the CEO, a direct interest in the subject matter of that application.
(2a)As well as seeking comments under subsection (2)(b) the CEO is to advertise the application in the prescribed manner, inviting any person who wishes to comment on it to do so within such period as is specified in the advertisement.
(3)Subject to subsections (4) and (5), the CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 ‑
(a)grant a works approval subject to such of the conditions referred to in section 62 as the CEO specifies in the works approval; or
(b)refuse to grant a works approval.
(3a)The CEO is to give the applicant written notice of the refusal to grant a works approval.
(4)If an application for a works approval made under subsection (1) is related to a proposal which has been referred to the Authority under section 38, the CEO shall not perform any duty imposed on him by subsection (3) ‑
(a)while any decision-making authority is precluded by section 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented; or
(b)contrary to, or otherwise than in accordance with, an implementation agreement or decision.
(5A)Subsection (4) does not apply if the application is for a works approval for the purpose of doing minor or preliminary work to which the Authority has consented under section 41A(3).
(5)If a decision-making authority makes a decision that has the effect of preventing the implementation of a proposal to which an application for a works approval made under subsection (1) is related, the CEO does not have to perform any duty imposed under subsection (3) while that decision has effect.
Section 74A(b)(iii) establishes a defence to various charges under pt V of the Act if the person charged with the offence proves that the pollution, in respect of an emission, occurred in accordance with a works approval.
As the CEO submits, the grant of a works approval does not directly affect any right, duty or liability of an owner of the land or any rights the holder of the approval might have against any other person. A works approval provides a defence to the approval holder to certain criminal proceedings.[1] Further, the holder of a works approval must comply with the conditions of the works approval failing which the occupier commits an offence: s 55(1).
[1] Eclipse Resources Pty Ltd v CEO, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353 [39].

Issues (1) and (2)

The applicants submit[2] as follows:
(1)section 54(1)(c) requires an application to be supported by such plans, specifications and other documents and information as the CEO requires;
(2)an application does not comply with s 54(1), within the meaning of s 54(2), unless it contains such documents and other information as the CEO requires;
(3)where the CEO requests further information, subsequent to the application being received, as occurred in this case, the application does not comply with s 54 until the CEO receives the requested information;
(4)when that information is received, the CEO is then obliged to seek comments and to advertise the application;
(5)in this case, in seeking comments before having sought further information from Opal Vale, the CEO acted prematurely.
[2] Applicants' responsive submissions [11] - [19], ts 3 - 4, 6.
In short, the applicants submit that the procedure contemplated by s 54 is that:
(1)the CEO receives an application;
(2)the CEO considers the application and supporting documents to determine if the CEO requires any additional documents or information;
(3)if the CEO determines that he or she requires additional documents or information, the CEO requests the documents or information from the applicant; and
(4)upon receipt of the documents or information, the CEO advertises the application, seeks comments and takes any comments received into account before deciding the application.[3]
[3] Applicants' responsive submissions [19].
The question is not what the desirable or preferable process is, but what the legislation requires. The process of statutory construction directs attention to the text of the legislation. In City of Kwinana v Lamont[4] the court said:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: … The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision.
[4] City of Kwinana v Lamont [2014] WASCA 112 [47], citations omitted.
In my view there are a number of fatal textual and other obstacles to the construction of s 54 advanced by the applicants.
First, s 54(2) creates a duty on the CEO that arises 'on receiving an application' to do, at that time, one of two alternative things. So, the duty to seek comments under s 54(2)(b) arises 'on receiving an application'. Nothing in s 54 provides that it arises at any later stage. That does not sit with the applicants' construction that the duty to seek comments is to be exercised only when and after any request for further information has been satisfied.
The requirement to advertise under s 54(2a) arises at the same time as comments are to be sought under s 54(2)(b). That is apparent from the language of subsection (2a): 'as well as seeking comments under subsection (2b) …'.
Secondly, the duty of the CEO under par (a) of s 54(2), if the application does not comply with s 54(1), is to 'decline to deal with that application and advise the applicant accordingly'. That language does not encompass the fundamentally different step of advising the proponent that further information is required.
Thirdly, the effect of the applicants' construction seems to be that the CEO's power under s 54(1)(c) to require further information can only be exercised upon receipt of the application, and it is incumbent on the CEO, when an application is received, to make a firm and final decision as to what, if any, further information is required. I think that is very unlikely to have been intended. It is to be expected that in the process of examining the merits of what may be a complex application, the CEO may determine that further information is needed. Further, a proponent's response to a request for further information may lead to another request. Comments received by the CEO pursuant to s 54(2)(b) or s 54(2a) may lead to a request for further information. There is nothing in the language of s 54(1) to suggest that the power to request further information is limited in the way apparently suggested by the applicants' construction. The generality of its language suggests otherwise.
In oral submissions, the applicants accepted that s 54(1)(c) should not be construed as limiting the CEO's power to require further information to being exercised once only, upon receipt of the application.[5] For the reasons in the preceding paragraph, that concession is rightly made. The power of the CEO to require further information can be exercised more than once, and at any stage of the CEO's consideration of an application. In my view, that feature of the statutory scheme is a further fatal obstacle to the applicants' construction of s 54, and to the applicants' case. The obligations of the CEO under s 54(2)(b) and s 54(2a) arise only once, and at the same time, namely the time specified in s 54(2): '[o]n receiving an application under [s 54(1)]'. Subject to one qualification, those obligations are not engaged if, subsequently, the CEO seeks and obtains further information from the applicant.
[5] ts 7.
The qualification is that if additional information received by the CEO so alters the character of the application to make it, in substance, a different application, further obligations would arise in respect of what would effectively be a new application. No argument that the Additional Documents had an effect of that kind was advanced by the applicants in this case,[6] and there is no basis for such a contention.
[6] Applicants' submission [7.3.2].
At one point in oral submissions, the applicants appeared to submit that there is an implied obligation under s 54 for the CEO to advertise and seek comments on additional material subsequently received by the CEO in response to a request by the CEO for further information.[7] The court's role is to construe the legislation, not to rewrite it. In construing legislation, a court does not readily imply words into an Act.[8] Section 54 makes provision for a process, a part of which creates obligations for the CEO to seek comments on and advertise an application. The extent of those objections is as expressed in s 54, properly construed. There is no legitimate basis for the court to then imply any additional obligation(s) on the CEO.
[7] ts 3, 7.
[8] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [38] - [40]; The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 [124] - [129]; The Commissioner for Corrective Services v RAJ [2014] WASC 338 [41] - [45].
As McHugh J observed in Newcastle City Council v GIO General Ltd,[9] in a passage recently cited with approval by French, Crennan and Bell JJ:[10]
[I]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover the other set of circumstances.
[9] Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113.
[10] Taylor v The Owners [39].
Similarly, in this case the Act uses language that covers only one situation - the initial receipt of the application - and that language cannot be construed to cover a different situation - the subsequent receipt by the CEO of additional documents.
In my view, the proper construction of s 54(2) is that, subject to one qualification, whether an application does or does not comply with s 54(1) for the purposes of s 54(2) does not invite attention to whether it is supported by such plans, specifications and other documents and information as the CEO requires. Rather, if the application does not comply with paragraphs (a) and (b) of s 54(1), the CEO must decline to deal with it, and advise the applicant accordingly. If it does comply with s 54(1)(a) and (b), the CEO must act in accordance with s 54(2)(b). The qualification is that if the CEO published, in advance, requirements under s 54(1)(c) of general application, on receipt of an application the CEO might determine that it did not comply with s 54(1)(c).
To put this another way, there is no failure to comply with s 54(1)(c) if the proponent has not received any requirement from the CEO for the information.
The CEO's obligations under s 54(2)(b) and s 54(2a) arise when an application is made to the CEO. Nothing in s 54 makes provision for the requirement to seek comments or to advertise at any later stage in the process. The subsequent receipt by the CEO of information from a proponent in response to a request for further information does not give rise to any further obligations to advertise or seek comments.

For these reasons, I would answer 'no' to issues (1) and (2).
As a result, the application must fail.

Issues (3) and (4)

Given my answer to issues (1) and (2), issues (3) and (4) do not arise.
As to issue (3), an act done in breach of a condition regulating the exercise of the statutory power is not necessarily invalid. Whether or not the act is invalid will depend upon whether it was a purpose of the legislation to invalidate any act done in breach of the condition. Whether that is so will be determined by consideration of the language of the provision, the scope and object of the statute as a whole, and the consequences of holding that all acts done in breach of the condition are void.[11] Any public inconvenience flowing from a construction of invalidity is a consideration.[12]
[11] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 [30].
[12] Project Blue Sky [97].
In Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation[13] Edelman J dealt with s 57 of the Act, many aspects of which mirror s 54. His Honour held that a breach by the CEO of s 57(2)(b)(i) of the Act would not lead to invalidity. Edelman J's findings in relation to this point were not necessary for his decision because he found that the section had not been breached.
[13] Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468 [131] ‑ [141].
His Honour found that the use in s 57(2) of mandatory language was a factor in favour of construing the legislation as having a purpose of invalidating an act done in breach of that provision.[14] Against that, Edelman J pointed to four matters that, in his view, sustained the contrary construction:
(1)section 57(2)(b) regulates the exercise of functions already conferred upon the CEO, rather than imposing essential preliminaries to the exercise of those functions;
(2)there would be considerable public inconvenience from invalidating a licence based on the absence of comment from a party whom the CEO ought to have considered to have a direct interest. That is because a licence holder may not have any means of knowing whether the licence is invalid;
(3)the requirement to advertise for comment and the obligation to take those comments into account means that a person does not necessarily lose the capacity to make comments even if the person's comments are not sought under s 57(2)(b)(i);
(4)a breach of s 57(2)(b)(i) might occur in a trivial fashion.
[14] Mineralogy [140], referring to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, [24].
Based on my construction of s 54, notwithstanding some doubt as to his Honour's first reason, I am inclined to follow the approach of Edelman J. However, on my construction of s 54, this question does not arise. This question falls to be determined only if s 54 is construed as creating an obligation for the CEO to invite comments on and advertise further information received by the CEO in response to having required further information under s 54(1)(c). Such a construction, if adopted, would likely reflect and reveal a wider purpose of s 54 than its purpose as I discern it. I am unable to identify or articulate any such wider purpose, or the foundation of a construction under which this issue arises. Consequently, I think any attempt to determine this issue would be artificial and unlikely to be of any sufficient utility to justify determining the question.
For these reasons, I will not determine issue (3).
For corresponding reasons, I will not determine issue (4). The scope and object of the statutory scheme is a consideration of significance in the exercise of the discretion to decline to grant certiorari.

Conclusion

For the reasons I have given, I would dismiss the application.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MANNING -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION [2016] WASC 253 (S)

CORAM: BEECH J

HEARD: ON THE PAPERS

DELIVERED : 13 OCTOBER 2016

FILE NO/S: CIV 1274 of 2016

BETWEEN: WILLIAM FRANCIS MANNING
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

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.[15] I made orders dismissing the application, and providing for the exchange of submissions in relation to the question of costs.
[15] Manning v Chief Executive Officer of The Department of Environment Regulation [2016] WASC 253.
The respondents seek their costs of the application. The applicants seek an order that there be no order as to costs.

The applicants' submissions

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

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.[16] In Oshlack v Richmond River Council,[17] McHugh J explained the rationale for this usual position:
[16] Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
[17] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (footnotes omitted).
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.
The usual rule that costs follow the event is not absolute. A court may depart from it in special circumstances.[18] 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 Australia[19] to emphasise the rare and exceptional character of occasions on which it is appropriate to depart from the usual order as to costs.
[18] Roe v The Director General, Department of Environmental and Conservation for the State of Western Australia [2011] WASCA 57(S) [12].
[19] Roe v The Director General [13].
The characterisation as public interest litigation is not in itself sufficient to warrant a departure from the usual order as to costs.[20] That imprecise shorthand phrase is inadequate to expose the basis on which the costs discretion is properly exercised.[21]
[20] Ruddock 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].
[21] Ruddock v Vadarlis [19]; The State of Western Australia v Collard [28].
It has been said that 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation'.[22] In Buddhist Society of Western Australia (Inc) v Shire of Serpentine‑Jarrahdale,[23] 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.[24]
[22] Oshlack v Richmond River Council [134].
[23] Buddhist 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].
[24] Buddhist Society of Western Australia (Inc) v Shire of Serpentine‑Jarrahdale [11]; The State of Western Australia v Collard [30].
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.[25]
[25] The State of Western Australia v Collard [32], [59].
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.
The absence of any private benefit to the plaintiff is neither necessary nor sufficient ground for departing from the usual order as to costs.[26] 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.[27]
[26] The State of Western Australia v Collard [46].
[27] The State of Western Australia v Collard [46].
In the end, in determining the appropriate orders for costs, all the circumstances of the case must be considered.

The appropriate costs order

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.
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.
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 Ltd[28] are broadly applicable to the present case (adapted to take account of the different legislation the subject of those proceedings):
[28] Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S) [11], cited with approval in The State of Western Australia v Collard [44].
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].
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.[29] 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.[30]
[29] See Manning v CEO [26] ‑ [30], [35] ‑ [37].
[30] ts 5 ‑ 8.
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'.[31] 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.
[31] Applicants' submissions [13(6)].
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

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.