Mees v Kemp (No 2)

Case [2004] FCA 549

FEDERAL COURT OF AUSTRALIA

Mees v Kemp (No 2) [2004] FCA 549

PRACTICE AND PROCEDURE – costs – public interest litigation – applicant unsuccessful – discretion to award costs – how exercised

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11(1)(c), 13
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 78, 487 and 488
Federal Court of Australia Act 1976 (Cth) s 43(2)

Mees v Kemp [2004] FCA 366 referred to
Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 discussed
Oshlack v Richmond River Council (1998) 193 CLR 72 discussed
South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 referred to
North Australian Aboriginal Legal Aid Service Inc v Bradley (No 2) [2002] FCA 564 referred to
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 discussed
Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 referred to

PAUL ANDREW MEES v DAVID KEMP (in his capacity as Minister for the Environment and Heritage) and SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY

V456 of 2003

WEINBERG J
3 MAY 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V456 OF 2003

BETWEEN:

PAUL ANDREW MEES
APPLICANT

AND:

DAVID KEMP (in his capacity as Minister for the Environment and Heritage)
FIRST RESPONDENT

SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY
SECOND RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

3 MAY 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant pay fifty per cent of the first respondent’s costs of and incidental to the substantive application, such costs be taxed in default of agreement. 

2.There be no order as to costs in relation to the preparation of written contentions regarding costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V456 OF 2003

BETWEEN:

PAUL ANDREW MEES
APPLICANT

AND:

DAVID KEMP (in his capacity as Minister for the Environment and Heritage)
FIRST RESPONDENT

SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY
SECOND RESPONDENT

JUDGE:

WEINBERG J

DATE:

3 MAY 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

  1. By application filed on 10 June 2003, the applicant, Dr Paul Mees, sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of two decisions made by the first respondent, the Minister for the Environment and Heritage. Those decisions related to the construction by the Victorian Government of a freeway that will run from the Eastern Freeway at Mitcham to Frankston.

  2. The applicant also sought an extension of time under s 11(1)(c) of the ADJR Act within which to lodge the application for an order of review in respect of the first of those two decisions.

  3. On 14 July 2003, the first respondent filed an objection to competency relating to the challenge to the second decision. 

  4. On 31 March 2004, the Court held that the application for an order of review in respect of the first…

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Details
AGLC
Mees v Kemp (No 2) [2004] FCA 549
Case
[2004] FCA 549
Decision Date

CaseChat Overview and Summary

Mees v Kemp (No 2) involved a dispute between the applicant, Mees, and the first respondent, Kemp, before the court. The primary issue was whether Mees should be required to pay Kemp’s costs, following Mees’s unsuccessful application. Mees argued he had acted reasonably to resolve the matter without litigation and conducted the hearing efficiently. The court considered the principles governing the discretion to award costs, including the general rule that a successful party is entitled to costs unless special circumstances warrant otherwise.

The court reviewed the balance of considerations, referencing the joint judgment in Ruddock v Vadarlis (No 2). The judgment highlighted the compensatory principle and alternative rationales for awarding costs, acknowledging that the rule of costs following the event might lead to unfairness in close or difficult cases without obvious fault by the losing party. This principle was crucial in assessing Mees's responsibility for costs. The court balanced Mees’s efforts to resolve the matter without litigation against the need to fairly apportion costs based on the nature of the dispute and the conduct of the parties.

In its decision, the court determined that Mees should pay fifty per cent of Kemp’s costs for the substantive application. This decision reflected the finely balanced considerations and the discretionary nature of the court’s power to award costs. The court refrained from making any order regarding costs in relation to the preparation of written contentions.

The court's order required Mees to pay fifty per cent of Kemp’s costs associated with the substantive application, with costs to be taxed if the parties could not agree on the amount. There was no order concerning costs related to the preparation of written contentions.

Orders

Orders of the court

1. The applicant pay fifty per cent of the first respondent’s costs of and incidental to the substantive application, such costs be taxed in default of agreement.

2. There be no order as to costs in relation to the preparation of written contentions regarding costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J (dissent)
Finally, the applicant submits that he did everything that could reasonably have been expected of him to resolve the matter without initiating court proceedings. For example, he asked the first respondent, pursuant to s 78 of the Environment Protection Act, to reconsider the first decision. He also conducted the hearing before the Court competently and efficiently, thereby minimising any delay or inconvenience to the respondents.CONCLUSION The considerations that bear upon whether the applicant should be required to pay the first respondent’s costs are finely balanced. The principles that govern the general discretion of the courts to award costs are set out in the joint judgment of Black CJ and French J in Ruddock v Vadarlis (No 2) at [11]:“…· Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.· Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. · A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.” Their Honours went on to say at [13]:“It has been argued, in academic commentary, that the general compensatory principle rests upon two alternative rationales. The first is that the successful party is entitled to be compensated for its costs because it has been wronged at the hands of the unsuccessful party. Costs under this rationale function as a species of damages. But that characterisation is not always tenable. Where, for example, declaratory relief is sought because of genuine uncertainty about the interpretation of a document or a statute, it will not explain why the successful party should be reimbursed at the cost of its opponent where the legal issue is novel and has consequences extending beyond the particular litigation. The alternative rationale for the compensation principle is simply that the winner should not have to suffer financially for vindicating its rights. The criticism of this intuitively attractive approach is again that it does not necessarily follow that the obligation to compensate the winner should be imposed on the losing party. For the losing party may have had very good legal grounds for its position and have conducted itself in the litigation in an entirely reasonable way. Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness. Moreover it may set up a significant barrier against parties of modest means even if the contemplated claim has substantial merit: See Tollefson, "When the ‘Public Interest’ Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) 29 University of British Columbia Law Review 303 at pp 309-311; see also McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article" (1996) 30 University of British Columbia Law Review 309. These criticisms will not justify a global modification, in public interest cases, of the usual rule that costs follow the event. They do however indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise.”

Ratio Decidendi

Legal Principle Established

Established by:

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