ROE -v- THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA [2011] WASCA 57 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 57 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CIV:2658/2010	Heard:	31 JANUARY 2011 & ON THE PAPERS
Coram:	MARTIN CJ BUSS JA MURPHY JA	Delivered:	15/03/11
Supplementary Delivered:	28/06/11
No of pages:	34	Judgment Part:	1 of 1
Result:	No order as to costs
Category:	A
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Parties:	JOSEPH ROE THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA WOODSIDE ENERGY LTD THE MINISTER FOR ENVIRONMENT COMMISSIONER OF MAIN ROADS
Catchwords:	Costs Whether the circumstances justify no order as to costs Proceedings in the public interest
Legislation:	Conservation and Land Management Act 1984 (WA) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW), s 123 Environmental Protection Act 1986 (WA) Equal Opportunity Act 1934 (WA) Land and Environment Court Act 1979 (NSW), s 69(2) Land and Environment Court Rules 2007 (NSW), r 4.2(1) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA), cl 11 Native Title Act 1993 (Cth) Real Estate and Business Agents Act 1978 (WA) Rules of the Supreme Court 1971 (WA), O 66 Supreme Court Act 1935 (WA), s 37(1) Wildlife Conservation Act 1950 (WA)
Case References:	Anderson v New South Wales Minister for Planning (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132 Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1106 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 21 Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S) Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200 Friends of Hinchinbrook Society Inc and Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 Friends of Hinchinbrook Society Inc v Minister for Environment (No 5) [1998] FCA 432; (1998) 84 FCR 186 Greendene Development Corporation Pty Ltd v Environmental Protection Authority [2003] WASCA 242; (2003) 28 WAR 107 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466 Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 Re Minister for Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366 Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109(S) Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57; (2011) 180 LGERA 38 Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [No 2] [2011] WASCA 58 Roe v The State of Western Australia [No 2] [2011] FCA 102 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 Scott v Secretary, Department of Social Security [2000] FCA 1450 South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 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 The Lands and Forest Commission (No 2) (1995) 86 LGERA 382 Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 900

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROE -v- THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA [2011] WASCA 57 (S) CORAM : MARTIN CJ

BUSS JA

MURPHY JA

HEARD : 31 JANUARY 2011 & ON THE PAPERS DELIVERED : 15 MARCH 2011 SUPPLEMENTARY
DECISION : 28 JUNE 2011 FILE NO/S : CIV 2658 of 2010 BETWEEN : JOSEPH ROE

Applicant

AND

THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA

First Respondent

WOODSIDE ENERGY LTD

Second Respondent

THE MINISTER FOR ENVIRONMENT

Third Respondent

FILE NO/S : CIV 2899 of 2010 BETWEEN : JOSEPH ROE (Page 2)

Applicant

AND

THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA

First Respondent

COMMISSIONER OF MAIN ROADS

Second Respondent

Catchwords:

Costs - Whether the circumstances justify no order as to costs - Proceedings in the public interest

Legislation:

Conservation and Land Management Act 1984 (WA)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Act 1979 (NSW), s 123
Environmental Protection Act 1986 (WA)
Equal Opportunity Act 1934 (WA)
Land and Environment Court Act 1979 (NSW), s 69(2)
Land and Environment Court Rules 2007 (NSW), r 4.2(1)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA), cl 11
Native Title Act 1993 (Cth)
Real Estate and Business Agents Act 1978 (WA)
Rules of the Supreme Court 1971 (WA), O 66
Supreme Court Act 1935 (WA), s 37(1)
Wildlife Conservation Act 1950 (WA)

Result:

No order as to costs

(Page 3)

Category: A

Representation:

CIV 2658 of 2010

Counsel:

Applicant : Mr M D Howard SC & Mr H H Jackson

First Respondent : Mr R M Mitchell SC & Mr C S Bydder

Second Respondent : Mr P C S Van Hattem SC & Mr D Dragovic

Third Respondent : Mr R M Mitchell SC & Mr C S Bydder

Solicitors:

Applicant : Environmental Defender's Office (WA) Inc

First Respondent : State Solicitor for Western Australia

Second Respondent : Freehills

Third Respondent : State Solicitor for Western Australia

CIV 2899 of 2010

Counsel:

Applicant : Mr M D Howard SC & Mr H H Jackson

First Respondent : Mr R M Mitchell SC & Mr C S Bydder

Second Respondent : Mr R M Mitchell SC & Mr C S Bydder

Solicitors:

Applicant : Environmental Defender's Office (WA) Inc

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

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

Anderson v New South Wales Minister for Planning (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132
Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166

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Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1106
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 21
Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S)
Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200
Friends of Hinchinbrook Society Inc and Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Friends of Hinchinbrook Society Inc v Minister for Environment (No 5) [1998] FCA 432; (1998) 84 FCR 186
Greendene Development Corporation Pty Ltd v Environmental Protection Authority [2003] WASCA 242; (2003) 28 WAR 107
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466
Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310
Re Minister for Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366
Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109(S)
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57; (2011) 180 LGERA 38
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [No 2] [2011] WASCA 58
Roe v The State of Western Australia [No 2] [2011] FCA 102
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411
Scott v Secretary, Department of Social Security [2000] FCA 1450
South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307

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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 The Lands and Forest Commission (No 2) (1995) 86 LGERA 382
Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 900

(Page 6)

1 MARTIN CJ & MURPHY JA: On 15 March 2011, the court dismissed two applications by Mr Joseph Roe (the applicant) challenging decisions by the Director General of the Department of Environment and Conservation (the Director General) to grant permits to Woodside Energy Ltd (Woodside), and to the Commissioner of Main Roads (the Commissioner), to clear native vegetation in the Kimberley region. The first application was dismissed in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57; (2011) 180 LGERA 38 (Roe). The respondents in that matter were the Director General, Woodside and the Minister for Environment. The second application was dismissed in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [No 2] [2011] WASCA 58 (Roe (No 2)). The respondents in that matter were the Director General and the Commissioner. All respondents in both matters, except Woodside, were represented by the State Solicitor's Office and we will refer to those respondents collectively as the State.

2 When the reasons in both matters were delivered by the court, the respondents in both matters sought the usual orders that the applicant pay the respondents' costs of the application, including reserved costs, to be taxed. They also sought orders pursuant to cl 11(b) of the Schedule to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) for the time reasonably spent by the respondents in the settling of the application book indexes, the preparation of affidavits and the preparation of the respondents' answers under item 33 of the Table to cl 11, to the extent that those costs are not provided for in item 28 of the Table to cl 11.

3 The applicant submits that the court should make no order as to costs in both matters and opposes orders allowing recovery of costs for time reasonably spent on the matters listed above.

4 Orders were made for the exchange of submissions on the basis that these issues would be dealt with on the papers, without the need for a further hearing. The following reasons are concerned with the matter of what, if any, orders should be made regarding the costs of the proceedings.

The power of the court to depart from the usual order as to costs in special circumstances

5 The respondents seek their costs because they assert that there is no reason to depart from the general position that costs will follow the event.

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6 However, the applicant points to a number of factors, including that the proceedings were in the public interest, which are said to render it just and reasonable that the court exercise its discretion so as to require that each party bear its own costs.

7 It is convenient then to briefly summarise the key points of law regarding the exercise of the court's discretion in the manner urged by the applicant.

8 The court has a general discretion to award costs, the usual exercise of which results in an award of costs to a successful party: Supreme Court Act 1935 (WA), s 37; Rules of the Supreme Court 1971 (WA),O 66 r 1(1). The rationale for this usual position was explained by McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 in the following manner:

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 [67]-[68]. (footnotes omitted

9 In Oshlack the High Court held that the trial judge in that case had not erred in refusing to make an order as to costs between the parties. The trial judge, Stein J, had concluded that the public interest in the proceedings, in combination with other factors, made it just and reasonable to depart from the usual costs order. The matters which were considered by Stein J as justifying such an order are conveniently summarised by Gaudron and Gummow JJ in Oshlack:

(i) The 'traditional rule' that, despite the general discretion as to costs being 'absolute and unfettered', costs should follow the event of the litigation 'grew up in an era of private litigation'. There is a need to

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distinguish applications to enforce 'public law obligations' which arise under environmental laws lest the relaxation of standing by s 123 have little significance.

(ii) The characterisation of proceedings as 'public interest litigation' with the prime 'motivation' being the upholding of 'the public interest and the rule of law' may be a factor which contributes to a finding of 'special circumstances' but is not, of itself, enough to constitute special circumstances warranting departure from the 'usual rule'; something more is required.

(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation 'other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna'.

(iv) In the present case, 'a significant number of members of the public' shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a 'public interest' in the outcome of the litigation.

(v) The basis of the challenge was arguable and had raised and resolved 'significant issues' as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had 'implications' for the Council, the developer and the public.

(vi) It followed that there were 'sufficient special circumstances to justify a departure from the ordinary rule as to costs' [20]. (footnotes omitted)

10 A number of decisions where similar considerations have led to the making of no orders as to costs, albeit in the context of the legislative provisions relevant to the New South Wales Land and Environment Court, are collected by Biscoe J in Anderson v New South Wales Minister for Planning (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132 [8].

11 However, it should be noted that the statutory context in which each of these cases was decided is somewhat different to the statutory context of the current litigation. In Oshlack, the majority of the High Court placed considerable emphasis upon the statutory provision which relaxed the common law rules relating to standing, thereby manifesting a legislative intention to encourage litigation enforcing the statutory

(Page 9)

provisions which in that case, like this, related to the protection of the environment.

Anderson

concerned the cost of proceedings in the Land and Environment Court. The rules of that court made specific provision for a costs regime applicable to public interest proceedings (r 4.2).

12 Nevertheless, it is clear that these decisions, and others like them, do not lay down a special rule applicable to proceedings brought for the protection of the environment, or more generally on issues of public interest: see Friends of Hinchinbrook Society Inc v Minister for Environment (No 5) [1998] FCA 432; (1998) 84 FCR 186, 188; 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] - [6]; Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166, 171; Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466 [3]. Rather, the cases affirm the width of the discretion conferred upon a court in relation to costs, and the power of the court to depart from the usual order as to costs in special circumstances: Friends of Hinchinbrook Society Inc and Ruddock v Vadarlis (No 2)[2001] FCA 1865; (2001) 115 FCR 229. In that context, the fact that the litigation raises issues of public interest will not ordinarily, of itself, be sufficient to establish special circumstances, although it may be relevant to the determination of whether there are special circumstances which justify departure from the usual order.

13 The use of the expression 'special circumstances' to describe those occasions upon which it will be appropriate for a court to depart from the usual order as to costs emphasises the rare and exceptional character of those occasions. That observation is borne out by the fact that the applicant has been unable to point to any instance before this court where no order as to costs has been made in public interest litigation. The rare and exceptional character of the circumstances required to justify a departure from the usual order has been emphasised in a number of decisions in this court: see for example Southwest Forest Defence Foundation (Inc) v Land and Forest Commission (No 2) [5] - [6]. In Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55, after considering the decision in Oshlack, the court observed that:

[G]reat 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 [11].

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14 These principles are now well established. Because, ultimately, the principles concern the exercise of discretion in the context of the particular circumstances of an individual case, the previously decided cases provide illustrations of the way in which particular facts and circumstances have resulted in the exercise of a discretion in a particular way. The breadth of potentially relevant facts and circumstances is such that little insight is gained from a detailed consideration of previously decided cases, beyond the identification of the general principles which we have set out above. It is therefore appropriate to turn to consider the particular circumstances that are said to justify departure from the usual order as to costs in these cases.

(a) The proceedings were brought in the public interest

15 There is no doubt that the protection of the environment is a matter of public interest: Anderson [14]; Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 155 (Mason ACJ). Therefore, because an object of the Environmental Protection Act 1986 (WA) under s 4A is to protect the environment of the State, proceedings to enforce the provisions of that Act can generally be characterised as being in the public interest. However, as already noted, this factor alone cannot justify the court in making an order denying the respondents their costs: Oshlack [54].

(b) The proceedings assisted to clarify legal issues of importance under the Environmental Protection Act 1986

16 Subsequent to Oshlack the resolution of novel questions of general importance by a court has been considered a relevant factor in the exercise of the court’s costs discretion in proceedings said to be in the public interest: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 [73]; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [11]-[12]

17 The applicant argues that the court resolved a number of matters of law having broad and lasting significance for the administration of pt IV of the Environmental Protection Act 1986. Specifically the applicant points to the following matters determined by the court: the distinction between a strategic proposal and a significant proposal: Roe [28]; the notion that a strategic proposal cannot be, of itself, a significant proposal: Roe [46]; the time at which the scope of a proposal is identified for the purposes of classifying it as a strategic proposal or a significant proposal: Roe [53]; and, the meaning of the expression 'related to' in the context of

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the Act:

Roe

[101]. These were all issues which also required resolution for the purposes of deciding

Roe (No 2)

18 However, the State submits that the proper interpretation of legislation having a general application could almost always be said to give rise to the characterisation urged by the applicant. As a result, it is said that the issues resolved in both proceedings have no characteristic which differentiates them from similar issues of construction commonly raised in litigation before the court.

19 Similarly, Woodside says that the proceedings in Roe (No 2) did not raise novel points of general importance. Instead it seeks to characterise those proceedings as either substantially turning on their own facts or, alternatively, as involving 'a relatively conventional, though interesting and not altogether straightforward, exercise in statutory interpretation': South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307, 308 - 309.

20 It can be accepted that the outcome of these cases flowed largely from the application of previous authority, notably the decision in Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310, to the particular facts and circumstances of these cases. It can also be accepted that the process of statutory construction undertaken by the court was undertaken in a conventional way. However, neither of those facts detract from the relative complexity of the process of statutory interpretation required, or the importance of the outcome of that process for the administration of the laws of this State relating to the protection of the environment. Accordingly, in our opinion, this factor supports the applicant's assertion that there are, in these cases, special circumstances which justify departure from the usual order as to costs.

(c) The applicant had an arguable case

21 Although the applicant ultimately failed in each case, there can be no doubt that the contentions advanced on his behalf were arguable. They could certainly not be characterised as frivolous, or lacking in substance or foundation.

(d) The applicant was asserting a public interest, without prospect of personal gain or advantage

22 In the affidavits filed in support of his claim for relief, the applicant deposed that he brought those claims in his capacity as a law boss of the Aboriginal people who are the traditional owners of the land the subject of

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the proceedings. He was not cross-examined with respect to those assertions, or with respect to his motivation in bringing the proceedings, nor was his standing to bring the proceedings challenged in any way. On the evidence, therefore, it should be concluded that the applicant commenced the proceedings in the genuine belief that he was advancing the interests of the cultural group which he believes he represents, and without prospect of personal gain or advantage. There is also evidence that the Kimberley Land Council, which also purported to act on behalf of the traditional owners of the land, opposed the clearing permits the subject of these proceedings.

23 In Anderson, Biscoe J placed some emphasis upon the evidence of dissension within the cultural group the applicant purported to represent. The respondents submit that similar considerations apply to this case because, in Roe v The State of Western Australia [No 2] [2011] FCA 102, orders were made by Gilmour J replacing Mr Roe as a named applicant in proceedings which have been brought under the Native Title Act 1993 (Cth) asserting a claim to native title in respect of an area including the land the subject of these proceedings. That order is subject to an appeal which has been brought by Mr Roe and, in any event, establishes nothing more than disagreement with respect to the identity of those who should be responsible for the pursuit of the native title claim. The order of Gilmour J provides no evidence to contradict the unchallenged evidence of Mr Roe to the effect that these proceedings were motivated by his desire to protect the interests of his people.

(e) The special relationship between Aboriginal people and their land

24 The special relationship between Aboriginal people and their land has been recognised by the High Court (Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1) and by the Parliament of the Commonwealth (the Native Title Act 1993). Mr Roe deposed in the affidavits to which we have referred to his deep concerns as to the impact which the development which he apprehended would have upon the cultural values of the Aboriginal group of which he is a member. There is no reason to doubt the genuineness of those concerns.

Conclusion

25 Each of the factors identified by the applicant supports the proposition that the court should depart from the practice of making the usual order as to costs in these cases. In our opinion, although none of those considerations would be sufficient of themselves to sustain the conclusion that there are special circumstances in these cases, in

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combination they lead to that conclusion. For that reason, we would make no order as to the costs of these proceedings. That view makes it unnecessary to consider the submissions made by the respondents with respect to the special orders as to costs which they seek.

26 BUSS JA: These reasons are supplementary to, and must be read with, my reasons in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57; (2011) 180 LGERA 38 (the Woodside proceedings) and my reasons in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [No 2] [2011] WASCA 58 (the Commissioner of Main Roads proceedings).

The Woodside proceedings

27 By letter dated 25 March 2008, the Minister for State Development of Western Australia referred to the Environmental Protection Authority (the Authority), pursuant to s 38 of the Environmental Protection Act 1986 (WA) (the Act), the State Government's plan for 'a multi-user LNG hub to process the gas resources in the Browse Basin' (the Proposal). The State was the 'proponent', as defined in s 3(1) of the Act, of the Proposal.

28 When the Minister referred the Proposal to the Authority, the area of land for the hub precinct had not been chosen. At that time, 43 possible locations were being considered.

29 On 9 April 2008, the Authority decided to assess the Proposal as a 'strategic proposal', as defined in s 37B(2) of the Act.

30 On 14 April 2008, the Authority gave notice of its decision to assess the Proposal to various decision-making authorities under s 39A(3)(c) of the Act, including the Department of Environment and Conservation for Western Australia.

31 Numerous possible sites for the hub precinct were evaluated. On 23 December 2008, the Premier and Minister for State Development announced that the preferred location for the hub precinct was an area of land within the Shire of Broome known generally as James Price Point.

32 By an application dated 25 May 2010, the second respondent, Woodside Energy Ltd (Woodside), applied to the first respondent, the Director General of the Department of Environment and Conservation for Western Australia (Director General) under s 51E(1) of the Act for a

(Page 14)

permit (Woodside Clearing Permit) authorising it to clear native vegetation from land at James Price Point.

33 The purpose of the Woodside Clearing Permit was described in Woodside's application as:

Onshore site investigations to develop approvals documentation and to inform the design of a proposed Browse Liquid Natural Gas Precinct.

The proposed method of clearing, as described in the application, was:

Removal of native vegetation to provide suitable access and working areas for onshore site investigations. Topsoil to be removed and vegetation mulched for future rehabilitation.

34 Woodside is the operator of a joint venture which is contemplating a project that will involve the extraction of natural gas from the Browse Basin and its subsequent liquefication, processing and storage in facilities to be constructed at James Price Point.

35 On 30 July 2010, the Director General, by his delegate, granted the Woodside Clearing Permit to Woodside pursuant to s 51E(5) of the Act. The Woodside Clearing Permit authorises the clearing of native vegetation (up to a total of 25 ha) from land at James Price Point.

36 After the Woodside Clearing Permit was granted, the applicant, Mr Roe, and other people lodged appeals against the grant with the third respondent, the Minister for Environment for Western Australia (Minister for Environment). On 7 December 2010, the Minister dismissed the appeals.

37 Mr Roe then applied, by an amended originating motion, for prerogative and declaratory relief on two grounds.

38 First, Mr Roe alleged that the Director General made a jurisdictional error in failing to address and determine whether:

(a) the Proposal was itself a 'significant proposal', as defined in s 37B(1) of the Act, in circumstances where Woodside's application for the Woodside Clearing Permit was related to the Proposal; and

(b) if the Proposal was itself a 'significant proposal', whether any 'decision-making authority' was precluded by s 41 of the Act from making any decision which could have the effect of causing or allowing the Proposal to be implemented.

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39 Secondly, and in the alternative to the first ground, Mr Roe alleged that, by reason of s 51F(1)(a) of the Act, the Director General was prohibited from granting the Woodside Clearing Permit under s 51E(5) of the Act in that the Proposal was itself a 'significant proposal' in circumstances where the application for the Woodside Clearing Permit was related to the Proposal and one or more decision-making authorities were precluded by s 41 of the Act from making any decision which could have the effect of causing or allowing the Proposal to be implemented.

40 The critical issue in the Woodside proceedings was whether the Proposal was solely or partly a 'significant proposal' or whether it comprised, relevantly, a 'strategic proposal'.

41 If the Proposal comprised, relevantly, a 'strategic proposal', then s 41 of the Act did not apply to it (s 40B(1)) and, in consequence, s 51F was not engaged.

42 If, however, the Proposal was solely or partly a 'significant proposal', then s 41 prevented 'decision-making authorities' who had been notified of the Proposal from making a decision that could have the effect of causing or allowing the Proposal to be implemented and, in consequence, s 51F prevented the Director General from granting the Woodside Clearing Permit.

43 The Authority's treatment of the Proposal, as a strategic proposal only, did not determine the Proposal's true character. The correct characterisation of the Proposal depended on the application of the relevant provisions of the Act, properly construed, to the particular facts and circumstances.

44 This court held unanimously that the Proposal was not, either wholly or partly, a 'significant proposal'. It followed that the Director General had power to grant the Woodside Clearing Permit. The second ground on which Mr Roe sought prerogative and declaratory relief therefore failed.

45 It was unnecessary to deal with the first ground on which Mr Roe sought relief.

46 Mr Roe's claim in the Woodside proceedings was therefore dismissed.

The Commissioner of Main Roads proceedings

47 The Commissioner of Main Roads proceedings were closely related to the Woodside proceedings.

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48 By an application dated 12 August 2010, the second respondent, the Commissioner of Main Roads (Commissioner), applied to the Director General under s 51E(1) of the Act for a permit (Main Roads Clearing Permit) authorising him to clear native vegetation from land at James Price Point.

49 The purpose of the Main Roads Clearing Permit, as described in the application, was:

To establish a trace line associated with the James Price Point LNG precinct. The trace line will enable further investigation of the following aspects:

(1) Environmental;

(2) Aboriginal heritage;

(3) Engineering;

(4) Geotechnical;

(5) Survey.

50 The area proposed to be cleared was 7.6 ha, being an area 19 km in length and 4 m in width.

51 The purpose of the application by the Commissioner was to clear a trace line for the access road to enable preliminary environmental and technical investigations, with a view to obtaining necessary environmental approvals for the construction of an access road from Cape Leveque Road to the eastern boundary of the proposed gas hub precinct at James Price Point.

52 On 14 October 2010, the Director General, by his delegate, granted the Main Roads Clearing Permit to the Commissioner pursuant to s 51E(5) of the Act.

53 Mr Roe relied on two grounds for his assertion that the grant of the Clearing Permit should be set aside.

54 First, Mr Roe alleged that the Director General was prohibited from granting the Main Roads Clearing Permit because the Proposal was itself a 'significant proposal' under the Act in circumstances where the application for the Main Roads Clearing Permit was related to the Proposal and one or more decision-making authorities were precluded by

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s 41 of the Act from making any decision which could have the effect of causing or allowing the Proposal to be implemented.

55 Secondly, Mr Roe alleged that he was a person who had, in the opinion of the Director General (through his delegate), a direct interest in the subject matter of the application for the Main Roads Clearing Permit, but was not invited to comment on the application as required by s 51E(4) of the Act.

56 As I have mentioned, this court held unanimously that the Proposal was not, either wholly or partly, a 'significant proposal', as defined in s 37B(1) of the Act. The Proposal comprised, relevantly, a 'strategic proposal', as defined in s 37B(2) of the Act. It followed that decision-making authorities were not precluded by s 41 of the Act from making any decision that could have the effect of causing or allowing the Proposal to be implemented. Accordingly, the Director General was not prohibited by s 51F of the Act from granting the Main Roads Clearing Permit to the Commissioner. Mr Roe's first ground failed.

57 This court also held unanimously that Mr Roe's second ground was without merit.

58 Mr Roe's claim in the Commissioner of Main Roads proceedings was therefore dismissed.

The costs of the Woodside proceedings and the Commissioner of Main Roads proceedings

59 On 15 March 2011, when judgment was delivered in respect of the Woodside proceedings and the Commissioner of Main Roads proceedings, the respondents moved for orders, including orders that:

(a) Mr Roe pay the respondents' costs of the proceedings, including reserved costs, to be taxed; and

(b) Pursuant to cl 11(b) of the Schedule to the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) (the Determination), to the extent that they are not provided for in item 28 of the Table to cl 11 of the Schedule to the Determination, the time reasonably spent by the respondents in the settling of application book indexes, the preparation of affidavits and the preparation of the respondents' answers be allowed pursuant to item 33 of the Table to cl 11 of the Schedule to the Determination on a party and party basis.

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60 Counsel for Mr Roe opposed the making of these orders in relation to costs.

61 Martin CJ, who delivered the judgments of the court, directed that submissions be filed and that the question of costs be determined on the papers.

Mr Roe's submissions on costs

62 Mr Roe opposes the making of the orders as to costs proposed by the respondents and submits that there should be no order as to costs. It is submitted on his behalf that the proceedings were brought in the public interest to ensure compliance with the environmental law and that the proceedings have assisted in resolving an important legal question relating to the administration of the Act. Mr Roe relies on the decision of the High Court in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 in support of his submission.

63 In summary, Mr Roe argues that this court should depart from the usual order that costs follow the event, in that:

(a) the proceedings were, so it was submitted, of a public interest character because they were brought to uphold the observance of the law in relation to clearing native vegetation;

(b) when the proceedings were commenced, Mr Roe was a representative of an Aboriginal group;

(c) according to Mr Roe, he had an arguable case and the reasons of this court have helped to clarify the application of s 51E(4) and s 51F(1) of the Act and the fundamental issue of identification of a 'significant proposal', thereby providing a public benefit;

(d) he brought the proceedings for reasons other than personal or financial gain; and

(e) his concern that the proper assessment process should be followed in relation to the Proposal was shared by a broad segment of the public nationally.

The general rule as to costs

64 Section 37(1) of the Supreme Court Act 1935 (WA) provides, relevantly, that subject to the Supreme Court Act and to the rules of the court, the costs of and incidental to all proceedings in the Supreme Court

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shall be in the discretion of the court, and the court shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.

65 The general rules as to costs are set out in O 66 r 1 of the Rules of the Supreme Court 1971 (WA). By O 66 r 1(1), relevantly, subject to the express provisions of any statute and of the rules, the costs of and incidental to all proceedings shall be in the discretion of the court but, without limiting the general discretion conferred on the court by the Supreme Court Act, and subject to O 66, the court will generally order that the successful party to any action or matter recover his costs.

66 In Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, the High Court stressed that where a court has a discretion in relation to awarding costs, the exercise of the discretion should primarily be guided by a consideration of the position of the successful party to the litigation. Mason CJ said:

If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings:

Cilli v Abbott

((1981) 53 FLR at p 111) (543).

See also

Oshlack

[67] - [70] (McHugh J).

The decision of the High Court in Oshlack

67 In Oshlack, the appellant brought proceedings in the Land and Environment Court of New South Wales under s 123 of the Environmental Planning and Assessment Act 1979 (NSW) against the respondent and Iron Gates Developments Pty Ltd (the developer). He sought relief in respect of the respondent's consent to a development application made by the developer. He argued that the respondent had failed properly to exercise its power by unreasonably concluding that the proposed development was not likely significantly to affect the environment, in particular, the habitat of the koala. The Land and Environment Court (Stein J) dismissed Mr Oshlack's application. Stein J decided that, although Mr Oshlack had been unsuccessful, there should be no order as to costs. The respondent, but not the developer, appealed against this order to the Court of Appeal of New South Wales (Clarke, Sheller & Cole JJA), which reversed Stein J's decision and ordered Mr Oshlack to pay the respondent's costs of both the primary and the appellate proceedings. On appeal by Mr Oshlack to the High Court, a

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majority of the court (Gaudron, Gummow & Kirby JJ; Brennan CJ & McHugh J dissenting) reversed the Court of Appeal and restored the costs order made by Stein J.

68 Gaudron and Gummow JJ said that the difference of opinion between Stein J and the Court of Appeal turned, to a significant degree, upon the proper construction of certain provisions of the Environmental Planning and Assessment Act and the Land and Environment Court Act 1979 (NSW).

69 Section 123 of the Environmental Planning and Assessment Act provided:

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2) Proceedings under this section may be brought by a person on his own behalf or on behalf of himself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

70 By s 69(2) of the Land and Environment Court Act:

Subject to the rules and subject to any other Act:

(a) costs are in the discretion of the Court;

(b) the Court may determine by whom and to what extent costs are to be paid; and

71 Gaudron and Gummow JJ noted that Stein J, in exercising the discretion conferred by s 69(2) by determining that there should be no order as to costs, took into account various factors including the following:

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distinguish applications to enforce 'public law obligations' which arise under environmental laws lest the relaxation of standing by s 123 have little significance.

(ii) The characterisation of proceedings as 'public interest litigation' with the 'prime motivation' being the upholding of 'the public interest and the rule of law' may be a factor which contributes to a finding of 'special circumstances' but is not, of itself, enough to constitute special circumstances warranting departure from the 'usual rule'; something more is required.

(vi) It followed that there were 'sufficient special circumstances to justify a departure from the ordinary rule as to costs' [20].

72 Gaudron and Gummow JJ held that s 69(2) of the Land and Environment Court Act, in its operation upon litigation under s 123 of the Environmental Planning and Assessment Act, was not to be narrowly construed. Further, it was applicable to 'new species of litigation' and the discretion it conferred was to be exercised so as to allow for the 'varied interests at stake in such litigation' [45].

73 Gaudron and Gummow JJ were of the opinion that Stein J had not taken into account considerations which were extraneous to any objects the Parliament could have had in view in enacting s 69(2). Their Honours concluded:

Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that 'something more' than the

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categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case [49].

74 Kirby J, who was the other member of the majority in Oshlack, reviewed the provisions of the Environmental Planning and Assessment Act. His Honour noted that the objects of that Act, as stated in s 5, included providing 'increased opportunity for public involvement and participation in environmental planning assessment' (s 5(c)). His Honour then said:

When this background of special, and in some ways peculiar, legislation is recognised, it will be appreciated that the provision in the

Land and Environment Court Act

as to costs appears in a statutory context which alters, to some extent, the assumptions upon which civil litigation in this country has hitherto, ordinarily, taken place. Instead of a purely adversarial contest between two parties having individual, and typically financial, interests to advance, Parliament has envisaged that, in some cases at least, the contestants will be ranged as they were in these proceedings: on the one side an individual or representative body seeking to uphold one perception of the public interest and the requirements of environmental law; on the other side, a local government authority seeking to uphold another [117].

75 Kirby J concluded that the Court of Appeal erred in deciding that Latoudis demonstrated error in Stein J's approach. Stein J's order was a discretionary one which could only be disturbed for an established error of principle. The order of the Court of Appeal should therefore be set aside. The respondent did not seek to support the Court of Appeal's order on some other ground. Accordingly, Stein J's order should be restored [133].

76 McHugh J (dissenting) said that Stein J's reasons did not refer to any principle or criterion which would enable other courts to determine why the matters that he mentioned made the case 'public interest litigation' [75]. His Honour continued:

Nor does he refer to any principle or criterion that would enable other courts to distinguish this case from prosecutions, and constitutional and administrative law matters that are matters of public controversy in which there is a public interest in the outcome of the litigation or which involve an analysis of statutory provisions which should prove helpful in other

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cases. Without an organising principle to apply or a set of criteria to guide, there is a real danger that, by invoking the 'public interest litigation' factor in cases that affect the public interest or involve a public authority, an award of costs will depend on nothing more than the social preferences of the judge, a dependence that will be masked by reliance on the protean concept of public interest litigation [75].

77 McHugh J held that the characterisation of Mr Oshlack's proceedings against the respondent as public interest litigation was irrelevant to the question of costs. So also were the additional factors that Stein J relied on to conclude that 'special circumstances' existed to justify a departure from the usual order as to costs. The Court of Appeal correctly allowed the appeal from Stein J's decision [101].

78 Brennan CJ, who also dissented, noted that costs are awarded to indemnify a successful party in litigation, and are not awarded by way of punishment of the unsuccessful party [1]. His Honour accepted that the administration of the Environmental Planning and Assessment Act was a subject in which the public has a considerable interest. But he added that the public interest in the administration of that Act was no greater than the public interest in the enforcement of the criminal law [2]. Brennan CJ was of the opinion that the fact that Mr Oshlack brought proceedings in the public interest for the protection of endangered fauna did not provide a sufficient reason by itself for refusing the successful respondent its costs. To do so would be to depart from the principle enunciated in Latoudis [2]. His Honour expressed his general agreement with the reasons of McHugh J [3].

The High Court's decision in South-West Forest Defence Foundation (No 2)

79 In 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, the applicant was unsuccessful in an application to the High Court for special leave to appeal. It contended that, apart from the hearing for special leave on one day, each party should bear its own costs because the proceedings were of a 'public interest character'. It was submitted that the proceedings were of a 'public interest character' in that they sought to enforce environmental laws for the benefit of the general public and for the benefit of the endangered species of flora and fauna in the forest areas in question [1]. Gaudron, McHugh, Hayne and Callinan JJ said that, notwithstanding the applicant's submission, the costs of the special leave application should follow the event [2].

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80 Kirby J agreed with the conclusion of the other members of the High Court. His Honour explained:

It may be accepted that this court has a broad discretion in such matters which cannot be shackled by immutable rules. However, that discretion must be exercised judicially and in accordance with conventional, although not inflexible, practice. Nothing in the recent decision in

Oshlack v Richmond River Council

((1998) 152 ALR 83; 72 ALJR 578; [1998] HCA 11) requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule. To suggest that would be to misread what the court decided in

Oshlack

. It would require legislation to afford litigants such a special and privileged position so far as costs are concerned. No such general legislation has been enacted [5].

81 Kirby J then said that one of the particular considerations in Oshlack which led to confirmation of Stein J's order was the existence in that case of 'special legislation in New South Wales facilitating an "increased opportunity for public involvement and participation in environmental planning and assessment" (Land and Environment Court Act 1979 (NSW), s 5(c)) and enlarging the standing rules to permit that to be done (Environmental Planning and Assessment Act1979 (NSW), s 123)' [6]. His Honour noted that no similar legislation existed in the case for which special leave was sought. This case was concerned with the enforcement of various provisions of the Conservation and Land Management Act 1984 (WA) and the Wildlife Conservation Act 1950 (WA).

Decisions of this court and the Full Court of the Supreme Court of Western Australia

82 In South-West Forests Defence Foundation (Inc) v The Lands and Forest Commission (No 2) (1995) 86 LGERA 382, the Full Court of the Supreme Court of Western Australia considered whether the court should depart from the usual order as to costs (that is, costs follow the event) where an unsuccessful appellant was a 'public interest body'. The court had dismissed an appeal from a decision of a single judge of the Supreme Court who had rejected the appellant's application for 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 appellants relied on various provisions of the Environmental Protection Act and the Conservation and Land Management Act. They submitted that where a party can legitimately claim to represent the public interest, rather than merely a private interest, this may justify a court's departure from the

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general rule as to costs in appropriate circumstances. It was also submitted that these circumstances might include a case where important questions of general principle were raised for determination in the public interest. The Full Court (Kennedy, Anderson & Steytler JJ) held that there were no special circumstances which justified any departure from the general rule that costs should follow the event. The appeal, like the original application, proceeded on an erroneous view of the applicable statutory provisions. Their Honours added:

It is likely to be a very rare case in which an unsuccessful appellant from an adverse decision below will escape an order for costs. This is not such a case (384).

83 In Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55, the Full Court of the Supreme Court of Western Australia discharged an order nisi for a writ of prohibition sought by the applicant against the first respondent in respect of what was asserted to be a decision which it anticipated the first respondent would make to grant an extractive industries licence to the second respondent. The applicant opposed the making of a costs order against it. It submitted that the application for prohibition was 'public interest litigation' and in consequence the usual order as to costs should not be made. This submission was rejected. Kennedy, Wallwork and Murray JJ said 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' [11]. Their Honours added that 'the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be the rarity which this Court supposed it would be in the South-West Forests Defence Foundation case' [11].

84 In Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S), this court dismissed an appeal brought by the Commissioner for Equal Opportunity, the Trades and Labour Council of Western Australia and Western Australians for Racial Equality Inc from a decision of the State Administrative Tribunal granting exemptions to the first respondent and others pursuant to s 135 of the Equal Opportunity Act 1984 (WA). The appellant submitted that the court should not follow the usual practice whereby costs are ordered to follow the event. They submitted that the appeal was appropriately to be categorised as 'public interest litigation', although they accepted that there is no special costs regime applicable to litigation characterised in that manner. Martin CJ, Wheeler and

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Pullin JJA ordered that the appellants pay the respondents' costs of the appeal to be taxed. Their Honours said:

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.

Nor does the first appellant's role as a statutory office holder with an interest in the interpretation and application of the statute in question differentiate this case in any way from a large number of other appeals heard by the Court. And the fact that the point of interpretation had not previously been determined by a superior court is another commonplace feature of appeals concerning the interpretation of statutes, and which does not provide any justification for departing from the normal rules in respect of costs.

Accordingly, for these reasons, the submissions made by the appellants in respect of the nature of the issues raised by the appeal and their particular roles in relation to those issues do not persuade us to depart from the normal practice of the Court in respect of costs [11] - [13].

85 In Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109(S), the respondents were unsuccessful in the appeal and on their notice of contention before this court. They submitted, nevertheless, that the court should not follow the ordinary rule that the successful litigant should be awarded its costs. They advanced two reasons. First, the appeal was 'public interest litigation' sufficient to warrant the appellant being deprived of its costs. The public interest elements were said to be the interpretation of legislation protecting the public interest, being the creation and regulation of the Fidelity Fund under the Real Estate and Business Agents Act 1978 (WA), and the fact that the appellant was a publicly funded body required to administer the Fidelity Fund. Secondly, the respondents claimed that the appellant 'elected' and exercised a 'discretion' to avail itself of a technical legal defence to block the respondents' otherwise valid claim.

86 This court (Steytler P, McLure & Pullin JJA) was not satisfied that the circumstances justified a departure from the ordinary rule as to costs. They also noted that the second reason advanced on behalf of the respondents involved a misstatement of the court's reasons in the appeal.

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Decisions of other intermediate courts of appeal

87 In Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229, Black CJ and French J observed, correctly in my respectful opinion, that the true issue in Oshlack was whether the subject matter, scope and purpose of the statute conferring the power to award costs in that case was such that the considerations to which Stein J had regard were extraneous to any object the Parliament had in view in enacting it [21]. Their Honours continued:

The Full Court of the Federal Court in

Friends of

Hinchinbrook Society Inc v Minister for the Environment (No 5)

(1998) 84 FCR 186 put it another way when it identified the entitlement of the Court of Appeal of New South Wales to disturb the discretionary decision of the trial judge as the issue decided in

Oshlack

: The decision of the High Court, it was said, ' … does not lay down a rule for application in other cases in the making of costs orders' (at 188) [21].

88 Black CJ and French J suggested that the term 'public interest' may best be seen as 'an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event' [14].

89 Where an appeal raises a novel question of substantial general importance and some difficulty, the appellate court may decline to order costs against the unsuccessful appellant. See Ruddock [28]; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [12] (Black CJ, Moore & Emmett JJ).

90 The fact that an unsuccessful appellant sought no financial gain from the proceedings is not, of itself, sufficient reason for departing from the usual order as to costs. See Ruddock [18]; Save the Ridge [15].

91 Also, the fact that an association's objects have a 'public interest nature' and in consequence there is an absence of potential financial gain from the litigation has not, at least generally, been a sufficient reason to depart from the ordinary rule as to costs. See Save the Ridge [15].

92 In Save the Ridge, Black CJ, Moore and Emmett JJ rejected the appellant's submission that the extended standing provisions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) under consideration in that case showed an intention to increase the opportunity for public participation in environment and planning

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decisions 'such as to encourage a departure from the general rule that costs follow the event'. Their Honours said:

This submission is inconsistent with the approach taken by Branson J in

Booth v Bosworth

[2001] FCA 1718 and by the Full Court in

Friends of Hinchinbrook Society Inc v Minister for the Environment

(No 5)

(1998) 84 FCR 186; [1998] FCA 432. It is not supported by the decision of the High Court in

Oshlack v Richmond River Council

(1998) 193 CLR 72; 152 ALR 83; [1998] HCA 11. In that case, only Kirby J considered that the wide standing provisions of the

Environmental Planning and Assessment Act 1979

(NSW) had a relevance to the question of costs, stating (at [134]):

'Given that statutory context and the clear purpose of parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of parliament’s particular purposes.'

By contrast McHugh J said (at [89]):

'Under wide standing provisions … applicants are simply given enhanced access to restrain or remedy breaches of the law by respondents. Since the respondent is already expected to comply with the law, giving a member of the public a right to ensure that the respondent has so complied causes no relevant prejudice to the respondent.'

Although McHugh J was in the minority in the outcome of

Oshlack

, Gaudron and Gummow JJ similarly dealt with the concept of 'public interest litigation' only in so far as it was relevant to distinguishing

Latoudis v Casey

(1990) 170 CLR 534; 97 ALR 45, and not in relation to the statutory framework from which it had come. (For a discussion of this aspect of the decision in

Oshlack

, see K Edwards, 'Costs and Public Interest Litigation After

Oshlack v Richmond River Council

' (1999) 21

Syd LR

680, at 686 - 90) [17] - [19].