Save the Ridge Inc v Commonwealth of Australia

[2005] FCA 157

FEDERAL COURT OF AUSTRALIA

Save the Ridge Inc v Commonwealth of Australia [2005] FCA 157

COSTS – ‘public interest’ litigation

South-West Forest Defence Foundation Inc v Executive Director of Department of

Conservation and Land Management (No 2) (1998) 72 ALJR 1008 applied

SAVE THE RIDGE INC v COMMONWEALTH OF AUSTRALIA & ANOR

ACD 16 of 2004

WHITLAM J
20 JANUARY 2005
SYDNEY (BY VIDEOLINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	ACD 16 OF 2004

BETWEEN:

SAVE THE RIDGE INC
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

20 JANUARY 2005

WHERE MADE:

SYDNEY (BY VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The proceeding is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	ACD 16 OF 2004

BETWEEN:

SAVE THE RIDGE INC
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGE:	WHITLAM J
DATE:	20 JANUARY 2005
PLACE:	SYDNEY (BY VIDEOLINK TO CANBERRA)

REASONS FOR JUDGMENT

1. It is accepted that the consequence of the order pronounced this morning ([2005] FCA 17) is that the proceeding be dismissed.

2. The solicitor for the applicant asked, however, that no order for costs be made along the lines of the decision in Oshlack v Richmond River Council (1998) 193 CLR 72 and that the question of costs be dealt with by written submissions. He informed me that the applicant’s counsel was unavailable until 31 January 2005, and he proposed the exchange of submissions within a short space of time after that date. I pointed out to Mr Woulfe that any question of special orders as to costs should generally be addressed at the hearing. That was especially the case where, as here, security for costs had been ordered. The respondents’ representatives opposed the reservation of costs. They were concerned about the extra costs that written submissions would involve and contended that the ‘public interest’ aspect of the proceeding had been debated and taken into account at the hearing of their clients’ security for costs applications. I declined to reserve the question of costs because of the additional costs that would unnecessarily be incurred.

3. Mr Woulfe made no further submissions why my discretion as to costs should not be exercised in accordance with conventional practice.  Nothing in Oshlack requires that, just because of the applicant’s statutory standing, there should be a departure from the ordinary rule that costs follow the event: South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008. The proceeding will be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            

Solicitor for the applicant:	Mr PG Woulfe from Porters
Solicitor for the first respondent:	Ms S Wright from the Australian Government Solicitor
Solicitor for the second respondent:	Mr KY Sim from the ACT Government Solicitor
Date of hearing:	20 January 2005
Date of judgment:	20 January 2005