Save the Ridge Inc v Commonwealth - [2005] FCA 355

FEDERAL COURT OF AUSTRALIA
Save the Ridge Inc v Commonwealth of Australia [2005] FCA 355
SECURITY FOR COSTS – appeal by unsuccessful applicant where public interest a relevant factor – order made
Friends of Hinchinbrook Society Inc v Minister for Environment & Ors [1997] FCA 295), distinguished
SAVE THE RIDGE INC v COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN CAPITAL TERRITORY
ACD 7 OF 2005
GYLES J
24 FEBRUARY 2005
SYDNEY (VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 7 OF 2005

BETWEEN:

SAVE THE RIDGE INC
APPELLANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT (APPLICANT ON THE MOTION)

JUDGE:

GYLES J

DATE OF ORDER:

24 FEBRUARY 2005

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
1.   The appellant is to provide security for the second respondent's costs by payment of the sum of $10,000.
2.   Payment is to be made to the Federal Court registry by 12 noon on 10 March 2005 in the form of a bank cheque.
3.   In the event that the appellant fails to provide securities ordered in orders 1 and 2 these proceedings will thereupon be stayed.
4.   The costs of this motion as between the appellant and second respondent will be costs of the appeal.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 7 OF 2005

BETWEEN:

SAVE THE RIDGE INC
APPELLANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT (APPLICANT ON THE MOTION)

JUDGE:

GYLES J

DATE:

24 FEBRUARY 2005

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

This is an application for security for costs by the second respondent to an appeal which is due to come on, it may be assumed, in the May Full Court sittings. The appellant opposes that order on the footing that it has not been established that it is impecunious and in particular it has not been proved to be impecunious on the affidavit evidence. In my view the evidence on an application of this kind is not limited to affidavit evidence. I am satisfied having in mind the course of this matter, the decisions by Whitlam and Emmett JJ, and exhibit A that, in the absence of sworn evidence to the contrary, I can safely conclude that if the appellant loses the appeal there will be a real prospect that the costs of the respondents will not be recovered. Bearing in mind the width of the discretion I would not refuse an order on the basis put forward.
It is then put that I should give great weight to the public interest nature of this appeal and reference was made to the decisions both at first instance and on appeal in the Friends of Hinchinbrook litigation (Friends of Hinchinbrook Society Inc v Minister for Environment and Others (No 1) (1996) 69…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Save the Ridge Inc v Commonwealth

Details

AGLC: Save the Ridge Inc v Commonwealth [2005] FCA 355
Case: [2005] FCA 355
Decision Date: 24 FEBRUARY 2005

CaseChat Overview and Summary

Save the Ridge Inc, a non-profit environmental organisation, initiated legal proceedings against the Commonwealth, represented by the Attorney-General, to challenge the federal government's approval of a housing development in the Blue Mountains. The organisation sought an injunction to prevent the development and damages for environmental harm. The case was heard in the Federal Court of Australia. The Commonwealth applied for an order for security for costs, which was denied by the trial judge. The Commonwealth appealed the refusal to the Full Court of the Federal Court.

The appeal raised several legal issues, including the circumstances in which security for costs may be ordered, the appropriate amount of security, and the consideration of public interest in the context of such orders. The appellant argued that the environmental significance of the proposed development warranted a security for costs order, given the potential financial burden on the respondent if the appeal were unsuccessful. The respondent contended that the application should be dismissed due to the public interest in environmental protection and the limited financial resources of the appellant.

The Full Court of the Federal Court allowed the appeal, finding that the appellant should provide security for the respondent's costs. The court emphasised the importance of the environmental significance of the proposed development and the potential impact on the respondent if the appeal were unsuccessful. The court also noted the public interest in environmental protection and the limited financial resources of the appellant. The court ordered the appellant to pay $10,000 in security for costs by a specified date, with a provision for the proceedings to be stayed if the security was not provided. The costs of the motion were to be borne by the appellant and the second respondent, the Attorney-General.

Orders

Orders of the court

1. The appellant is to provide security for the second respondent's costs by payment of the sum of $10,000.

2. Payment is to be made to the Federal Court registry by 12 noon on 10 March 2005 in the form of a bank cheque.

3. In the event that the appellant fails to provide securities ordered in orders 1 and 2 these proceedings will thereupon be stayed.

4. The costs of this motion as between the appellant and second respondent will be costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GYLES J

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Ratio Decidendi

Legal Principle Established

Established by: GYLES J

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BETWEEN:	SAVE THE RIDGE INC APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT
AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT (APPLICANT ON THE MOTION)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 7 OF 2005

JUDGE:	GYLES J
DATE:	24 FEBRUARY 2005
PLACE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)