Sea Shepherd Australia Ltd v The State of Western Australia
[2014] WASC 66 (S)
•2/05/14
SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 66 (S) | |
| Case No: | CIV:1278/2014 | ON THE PAPERS | |
| Coram: | EDELMAN J | 2/05/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | SEA SHEPHERD AUSTRALIA LTD SHARON ANN BURDEN THE STATE OF WESTERN AUSTRALIA PREMIER OF WESTERN AUSTRALIA MINISTER FOR FISHERIES |
Catchwords: | Practice and procedure Exceptional costs orders Whether no order should be made as to costs Concept of 'public interest' litigation Genuine assertion of environmental concern without prospect of personal gain Arguable case Novel questions of general importance Contribution of proceedings to understanding of the law Implication of proceedings for section of the public other than individual litigants |
Legislation: | Fish Resources Management Act 1994(WA) Interpretation Act 1984(WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167 Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 Construction Forestry Mining & Energy Union v Queensland Coal & Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174; (2003) 132 FCR 516 Hanlon v Brookes (1997) 15 ACLR 1626 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Liversidge v Anderson [1942] AC 206 Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615 Re Mersey Railway Co (No 1) (1888) 37 Ch D 610 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008 Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 Transport Accident Commissioner v O'Reilly [1998] VSCA 106; [1999] 2 VR 436 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66 (S) CORAM : EDELMAN J HEARD : ON THE PAPERS DELIVERED : 2 MAY 2014 FILE NO/S : CIV 1278 of 2014 BETWEEN : SEA SHEPHERD AUSTRALIA LTD
- First Applicant
SHARON ANN BURDEN
Second Applicant
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
PREMIER OF WESTERN AUSTRALIA
Second Respondent
MINISTER FOR FISHERIES
Third Respondent
Catchwords:
Practice and procedure - Exceptional costs orders - Whether no order should be made as to costs - Concept of 'public interest' litigation - Genuine assertion of environmental concern without prospect of personal gain - Arguable case - Novel questions of general importance - Contribution of proceedings to understanding of the law - Implication of proceedings for section of the public other than individual litigants
Legislation:
Fish Resources Management Act 1994(WA)
Interpretation Act 1984(WA)
Rules of the Supreme Court 1971 (WA)
Result:
No order as to costs
Category: B
Representation:
Counsel:
First Applicant : No appearance
Second Applicant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
First Applicant : Environmental Defender's Office WA (Inc)
Second Applicant : Environmental Defender's Office WA (Inc)
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167
Attrill v Richmond River Shire Council (1995) 38 NSWLR 545
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58
Construction Forestry Mining & Energy Union v Queensland Coal & Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174; (2003) 132 FCR 516
Hanlon v Brookes (1997) 15 ACLR 1626
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Liversidge v Anderson [1942] AC 206
Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615
Re Mersey Railway Co (No 1) (1888) 37 Ch D 610
Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S)
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66
South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307
South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008
Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115
Transport Accident Commissioner v O'Reilly [1998] VSCA 106; [1999] 2 VR 436
Introduction 5
The general costs principle 6
Cases concerning exceptional costs orders 6
A difficulty for assessment of the appropriate costs order in this case 9
The legal questions involved in the hearing of the preliminary issue 11
The reasons why an exceptional order should be made 11
(i) A genuine assertion of environmental concern without prospect of personal gain 11
(ii) An arguable case 12
(iii) The proceedings raised novel questions of general importance 12
(iv) The proceedings have assisted to clarify legal issues 16
(v) Implications for a section of the public other than the litigants 16
(vi) Other matters: efficiency and public policy 17
Conclusion 18
- EDELMAN J:
Introduction
1 The principal proceedings in this case involved judicial review of government decisions in relation to a policy described as the 'Shark Hazard Mitigation Strategy'. Part of that strategy involves setting baited drum lines in the Metropolitan Coastal Area and the South West Coastal Area to target three species of shark. The three species of shark are all 'totally protected fish' under the Fish Resources Management Act 1994 (WA). The applicants in the principal proceedings, Sea Shepherd Australia and Ms Burden, sought relief including an injunction to restrain the decisions and conduct implementing the strategy.
2 On 4 March 2014, a preliminary issue was tried in this action. The preliminary issue concerned whether particular Exemption Instruments made under s 7(2)(c) of the Fish Resources Management Act are'subsidiary legislation' for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative. The answer give to this question was 'no'. The effect of this answer was that the proceedings brought by Sea Shepherd Australia and Ms Burden were effectively concluded. The only issue that remains is costs.
3 The usual order as to costs is that the successful parties (here, the respondents) are entitled to payment of their costs. The respondents seek an order that Sea Shepherd Australia and Ms Burden pay their costs which the parties have helpfully, and with co-operation, agreed to fix at $19,000. Sea Shepherd Australia and Ms Burden submit that there should be no order as to costs or, alternatively, an order that they pay only a percentage of the respondents' costs. Sea Shepherd Australia and Ms Burden say that the usual order should not be made because the 'rare and exceptional circumstances' of the case justify departure from the usual order as to costs.1
4 The essential question is whether in all the circumstances of this case, there are reasons which are rare and exceptional from the usual course of litigation and which justify this Court making no order as to costs despite the usual rule being that successful parties (here, the respondents) are generally entitled to their costs. The circumstances in this case are sufficiently rare and exceptional. The appropriate order is that there should be no order as to costs.
The general costs principle
5 It is not necessary to set out the general costs principles at length. They are very well known. In broad summary they are as follows.2
(i) The Court has a general discretion to award costs and, 'without limiting [that] general discretion ... the Court will generally order that the successful party to any action or matter recover his costs'.3
(ii) Costs 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.
(iii) As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.4
(iv) The circumstances in which the Court will depart from the usual order for costs are rare and exceptional.5
Cases concerning exceptional costs orders
6 In written costs submissions all the parties relied heavily upon two decisions. The first is the decision of the majority of the High Court of Australia in Oshlack v Richmond River Council.6 The second is the decision of the majority of the Court of Appeal in this State in Roe v Director General, Department of the Environment and Conservation for The State of Western Australia.7 Both of those decisions are considered below.
7 Neither decision is determinative of this application. Nor does either decision apply to this case as directly as the parties contended. This is unsurprising in circumstances in which decisions in relation to costs are often heavily dependent upon the particular facts of the case.
8 In Oshlack, the issue concerned proceedings brought by Mr Oshlack against a developer and the Richmond City Council in the Land and Environment Court of New South Wales. Mr Oshlack sought to impugn consent that the Council had given to a development. The primary judge dismissed the application but ordered that there be no order as to costs. The factors which the primary judge took into account included the following description in the High Court:8
(i) the relaxation of standing under s 123 of the Land and Environment Court Act 1979 (NSW);
(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';
(iii) The desire by Mr Oshlack to ensure obedience to environmental law and the lack of anything that he had to gain from the litigation 'other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna';
(iv) the stance of Mr Oshlack being shared by a 'significant number of members of the public'; and
(v) the basis of the challenge was arguable and had raised and resolved 'significant issues' as to the interpretation and administration of statutory provisions which had implications for the Council, the developer and the public.
9 The decision was upheld by majority when the appeal reached the High Court of Australia. The issue for the High Court was not how that Court would have exercised its discretion. Instead, as Kirby J expressed the point in the majority, the question was whether it was 'open' to the primary judge 'to conclude that a departure from the ordinary compensatory rule was appropriate'.9 Or, as Gaudron and Gummow JJ expressed the point also in the majority, it was whether the reasons given by the primary judge were 'definitely extraneous to any objects the legislature could have had in view in enacting s 69' of the Land and Environment Court Act10 which provided for costs to be in the discretion of the Court.
10 In Roe v Director General, Department of the Environment and Conservation for The State of Western Australia,11 the Court of Appeal in this State considered whether an order for costs should be made in favour of the State which had succeeded in resisting two applications by Mr Roe challenging decisions by the Director General of the Department of Environment and Conservation. The decisions granted permits to Woodside Energy Ltd and to the Commissioner of Main Roads to clear native vegetation in the Kimberley region.
11 The majority of the Court of Appeal, Martin CJ and Murphy JA, emphasised the well-established principles concerning the rare and exceptional character of the circumstances required to justify a departure from the usual order and the great care that must be taken in making such an order.12 Nevertheless, the circumstances in that case were considered exceptional for five reasons, in combination.13
(i) The proceedings were brought in the public interest.
(ii) The proceedings assisted to clarify legal issues of importance under the Environmental Protection Act 1986 (WA) and 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.14
(iii) Mr Roe had an arguable case which could not be characterised as frivolous, or lacking in substance or foundation.
(iv) Mr Roe was asserting a public interest, without prospect of personal gain or advantage. Mr Roe brought the proceedings as a law boss of the Aboriginal people who are the traditional owners of the relevant land. He 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.
(v) There is a special relationship between the Aboriginal people and their land.
A difficulty for assessment of the appropriate costs order in this case
12 It is necessary to remark on the manner in which the primary application was brought in order to explain one significant difficulty in relation to this assessment of whether an exceptional costs order should be made.
13 On 26 February 2014, an application was brought for an interlocutory injunction to restrain the respondents from implementing the strategy pending the final hearing. Sea Shepherd Australia and Ms Burden sought an urgent hearing of the interlocutory injunction. Although their application had been brought some weeks after the commencement of the Shark Hazard Mitigation Strategy, the implementation of that strategy, and the effect of the exemptions, ends on 30 April 2014. The urgency of their application apparently arose because after that date the exemptions will have run their course. The matter will be purely hypothetical. There will be nothing of substance about which to adjudicate.
14 The primary basis upon which the interlocutory injunction was resisted was what appeared to be a short legal issue concerning whether the Exemption Instruments are subsidiary legislation. The respondents urged the hearing of only this point as a preliminary issue. For reasons I explained, it was very difficult to understand why Sea Shepherd Australia and Ms Burden initially wished to proceed with an application for an interlocutory injunction.15 Nevertheless, at the hearing, all parties agreed that this legal issue could be heard as a preliminary issue. Sea Shepherd Australia and Ms Burden respectfully pressed for an urgent resolution of the legal issue. The legal issue was resolved. It determined the proceedings.16
15 There is one substantive difficulty that this course of proceeding has caused for the determination of this application for costs. That difficulty is that another issue in the proceedings, which did not need to be decided, was whether Sea Shepherd Australia and Ms Burden had standing to seek relief.
16 The reason why issues of standing might have a material effect on the result is that the issues of standing and costs are not independent. This point was made by Kirby J who was a member of the majority in one of the cases upon which Sea Shepherd Australia and Ms Burden placed great emphasis, Oshlack v Richmond River Council.17 As his Honour said in a later case, Oshlack involved reliance upon the existence of 'special legislation in New South Wales' a feature of which involved 'enlarged' standing rules.18
17 In written costs submissions, the respondents appeared to submit that this Court should determine the costs issue on the basis that Sea Shepherd Australia and Ms Burden had no standing to seek the relief they claimed. The respondents distinguished the decision in Roe v Director General, Department of the Environment and Conservation for The State of Western Australia19on the basis that standing in that case was not in dispute.20 And the respondents submitted that a general interest in litigation by the public does not establish 'public interest' litigation for the purposes of an award of costs.21
18 In response to correspondence from the Court, the respondents subsequently clarified that they did not seek resolution of the dispute concerning standing.22 Hence, no party now seeks to have the question of standing determined solely for the purposes of an assessment of costs. This is an understandable position. To have a trial of the question of standing would merely burden the parties with costs that they had otherwise avoided.23 This is particularly so because the respondents sought an oral hearing if this Court were to determine the issue of standing.
19 My assessment in relation to costs therefore proceeds, with due concern for proportionality, in the absence of any final determination of standing. Nevertheless, and although I do not take this into account against the respondents, there is a degree of discomfort in the reliance by the respondents on the failure of Sea Shepherd and Ms Burden to prove standing in circumstances in which the respondents had urged that the preliminary issue be heard in the absence of any argument concerning standing.
The legal questions involved in the hearing of the preliminary issue
20 The central legal issues raised at the hearing of the preliminary question were whether under the Fish Resources Management Act exemption instruments generally, or the particular exemption instruments which were issued, have 'legislative effect' within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act or whether the Fish Resources Management Act impliedly excluded a requirement of publication in the Government Gazette.
21 In my reasons for decision I divided these questions into five sub-issues as follows.24
(i) What is meant by 'instruments ... having legislative effect' in the definition of 'subsidiary legislation' in s 5, and applied to s 41, of the Interpretation Act?
(ii) Can instruments which exempt individuals or groups of individuals from the operation of an Act have 'legislative effect' so that they fall within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act?
(iii) Does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?
(iv) Do the Exemption Instruments in this case have legislative effect?
(v) If s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?
The reasons why an exceptional order should be made
(i) A genuine assertion of environmental concern without prospect of personal gain
22 I accept that the Sea Shepherd and Ms Burden did not, in the words of the respondents' submission, 'clearly establish' standing. This was a matter of dispute. Nevertheless, the Sea Shepherd and Ms Burden had, at least, a genuine belief that they were 'asserting a public interest, without prospect of personal gain or advantage'.25 It was common ground that their primary motivation for bringing the proceedings was a concern for environmental protection.26
23 The Fish Resources Management Act is also, on its plain terms, legislation which is concerned with environmental protection. Section 3 of the Fish Resources Management Act sets out its purpose as including development and management of 'fisheries and aquaculture in a sustainable way' and to 'share and conserve the State's fish and other aquatic resources and their habitats for the benefit of present and future generations'. Whether exemption instruments had properly exempted bodies from compliance with the Act is a matter of environmental concern.
(ii) An arguable case
24 The case brought by Sea Shepherd Australia and Ms Burden was arguable. It was not frivolous or lacking in substance or foundation. Aspects of it raised very difficult issues.
(iii) The proceedings raised novel questions of general importance
25 Another consideration which militates in favour of an order that there be no order as to costs is that the application raised questions of general importance and of some novelty. It is well established that these matters are relevant to whether the usual costs order is made. In Re Mersey Railway Co (No 1)27 the English Court of Appeal considered an issue concerning the priority of a judgment creditor in relation to an order made under the Railway Companies Act 1867 (30 & 31 Vict c 127). The essence of the dispute involved statutory construction but Cotton LJ (with whom the other judges agreed on this point) said that costs should not be awarded because 'it would be hard to order the judgment creditor to pay them in a novel case of so much general importance and of some difficulty'.28
26 Another example is one commonly overlooked aspect of the decision in Liversidge v Anderson.29 In that case, although Lord Atkin was in dissent on the primary issue, his Lordship was in a majority who considered that the importance of the case was such that costs 'should not be asked for'. Mr Valentine Holmes, then junior counsel to the Treasury, replied that he 'should not dream of asking for them on behalf of the Home Secretary'.30
27 Viewed only from the perspective of the immediate pleading issue between the parties, Liversidge might, at first glance, have appeared to be an unimportant case concerning an application for particulars of a defence in an action for false imprisonment. But the importance of the decision, the legal issues involved, and the resonance of Lord Atkin's powerful dissent, went far beyond the litigation itself.
28 The novelty and importance of the legal question raised was also a significant factor that was considered more recently in Ruddock v Vadarlis.31 In that case, the applicants were a solicitor and a civil liberties association. They brought applications against the Commonwealth seeking the release to the Australian mainland of rescuees from a foreign vessel, the M V Tampa. The vessel had been secured by Australian troops. The relief was granted by the primary judge. A majority of the Full Federal Court overturned the decision of the primary judge. But, by majority, the Full Federal Court ordered that there be no order as to costs of either the appeal or the application before the primary judge. Amongst the factors relied upon by the majority were (i) the novelty and importance of the questions of law, (ii) the division of judicial opinion on these issues, and (iii) the lack of any financial gain to the applicants in bringing their claims.32
29 Senior counsel for the respondents submitted in writing that the issue in the present case was 'only whether a particular kind of statutory instrument required publication in the Gazette before coming into operation'.33 It is always possible to characterise an issue in a narrow manner which aligns it closely with the facts of the case. Liversidge, on a narrow characterisation, was only a case concerned with the provision of particulars of a defence.
30 As between the parties in this case, the immediate issue was whether Exemption Instruments should be published in the Government Gazette, a course which senior counsel for the respondents said could be accomplished within minutes. But there were considerably wider legal and factual ramifications of the issue in this case which were matters of novelty and importance, and also matters upon which there was a division of judicial opinion.
31 I start, however, with the alleged wider legal ramifications that I reject. Counsel for Sea Shepherd Australia and Ms Burden said that a broad issue of public importance that was raised by the proceedings was that 'if the Ministerial exemptions in question in this proceeding could be characterised as subsidiary legislation ... then many, many more exemption instruments were implicated by the question presented'.34 This echoed a submission that he made at the hearing of the preliminary issue which was that every exemption, in every statute, was legislative in effect (and implicitly that no statute impliedly excluded the requirement of publication of subsidiary legislation in the Government Gazette).
32 In costs submissions, counsel for Sea Shepherd Australia and Ms Burden pointed to exemption provisions in the Environmental Protection Act 1986 (WA) s 6, Mining Act 1978 (WA) s 19, Conservation and Land Management Act 1984 (WA) s 57A, and Forest Products Act 2000 (WA) s 31.
33 This submission is incorrect. The assumption is that exemption instruments under the Fish Resources Management Act are materially identical to every other exemption instrument for the purposes of characterising whether the instrument has 'legislative effect' within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act irrespective of whether the relevant Act impliedly excludes a requirement of publication in the Government Gazette. This assumption is plainly wrong. Exemptions from the operation of legislation or parts of legislation can take a very wide variety of forms and have a wide variety of effects. Each statute must be assessed on its own terms.
34 This point can be highlighted by reference to substantial and material differences in the examples cited by Sea Shepherd Australia and Ms Burden:
(i) The Environmental Protection Act s 6, provides for exemptions of a different scope from the Fish Resources Management Act; it requires approval of the Governor for the exemption as well as for the revocation of the exemption; it requires publication in the Gazette of reasonable notice of an intention to revoke the power (but not publication of the exercise of the power); it deems the exemption to be 'regulations' (and hence subsidiary legislation) but only for the purposes of applying s 42 of the Interpretation Act which is then varied in effect. Section 42 deals with matters such as laying regulations, rules, local laws and by-laws before Parliament, and disallowance;
(ii) The Mining Act, s 19, contains a power of exemption from part or all of the Act that, again, is of a different scope from the Fish Resources Management Act; it also specifically requires any such exemption instrument to be published in the Government Gazette as soon as is practicable after its execution;35
(iii) The Conservation and Land Management Act, s 57A, is concerned with an exemption from a specific section of the Act in relation to a proposed management plan for land under the Act; the proposed management plan (but not the specific exemption) is specifically required to be published in the Government Gazette; and
(iv) The Forest Products Act, s 31 concerns the Minister's power of exemption of the Forest Products Commission from any matter, or any aspect of a matter, mentioned in a particular subsection of the Act dealing with a statement of corporate intent; it also provides that such exemptions are to be noted in the Commission's statement of corporate intent.
35 Although I reject the submission that the litigation concerned the effect on exemption instruments generally, there were a number of novel and important aspects of the legal issues raised by Sea Shepherd Australia and Ms Burden. These aspects of the case went beyond the environmental issue concerning whether exemption instruments had properly exempted bodies from compliance with the Fish Resources Management Act.
36 Perhaps most significantly, the central legal issue raised was the boundary between an instrument 'having legislative effect' and an instrument having 'executive effect'. As I explained in my principal reasons,36 quoting from Stephen J, the immediate consequence of that distinction concerned whether there was 'a mechanism for parliamentary oversight of delegated legislation and, no less importantly, allow those whom such laws effect to learn of their making and of their terms'.
37 This boundary, and these consequences, deriving from the Interpretation Act are matters of significant importance not merely to this case but in the application of the boundary instruments having potential legislative effect.
38 The legal question involving the Interpretation Act was also one of some novelty, and difficulty. The only decision concerning the relevant section of the Interpretation Act to which senior counsel for the respondents referred during the hearing was a brief discussion in the Full Court in this State in Norton v The Queen.37 The novelty of the question in that case was perhaps why the Full Court borrowed, by analogy, from the approach taken to differently worded legislation in the different context of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The cases in relation to that legislation have, in turn, borrowed from the approach of Latham CJ in the High Court of Australia in Commonwealth v Grunseit38 in the context of the differently worded Acts Interpretation Act1901 - 1937 (Cth). But the approach of Latham CJ is not an exclusive test. Nor did I accept the submissions of counsel for Sea Shepherd Australia and Ms Burden that the approach of Gummow J in Queensland Medical Laboratory v Blewett39 is, or was intended to be, a test to be applied. Further, other cases have supplied lists of potentially relevant factors but without always indicating why those particular factors are necessarily relevant to the assessment of whether an instrument is of legislative or executive effect (or, in the context of the Administrative Decisions (Judicial Review) Act, whether the instrument is of an 'administrative character').
(iv) The proceedings have assisted to clarify legal issues
39 This matter, referred to in Roe, is also a relevant consideration although it is closely associated with point (iii) above. As I explained above, and in the principal reasons in this matter, the issue concerning the boundary between legislative and executive effect is a difficult question which has given rise to fine distinctions and sometimes different tests. In Western Australia, in the context of s 5 of the Interpretation Act the case law is almost non-existent.
(v) Implications for a section of the public other than the litigants
40 Apart from the matters described above at point (iii), there is a further manner in which the proceedings will have implications for a section of the public other than the individual litigants. This is a matter recognised as relevant to the discretion to make no order as to costs.40 Its significance in this case is coupled with the lack of any personal gain or advantage to Sea Shepherd Australia and Ms Burden.
41 At the hearing of the application, senior counsel for the respondents explained why the respondents did not simply take the action of publishing the two Exemption Instruments in the Gazette, irrespective of whether they were required to do so by a proper construction of the Interpretation Act and the Fish Resources Management Act. Senior counsel said:41
These [two] exemptions were numbered 2375 and 2376. They are consecutively numbered, I'm instructed, starting at 1001 in 1996. So, as a practical matter, there will be hundreds of operative exemptions which people currently think exempt them from criminal liability under the [Fish Resources Management Act] and if that's wrong, well, the sooner we discover that, the better.
(vi) Other matters: efficiency and public policy
42 Two other factors are relevant to the exercise of the discretion to make an order that there be no order as to costs. The first is relevant, although I accept the respondents' submission that this matter is of limited assistance in this case. The second is not relevant.
43 The first factor is that from the time the application was filed, Sea Shepherd Australia and Ms Burden acted in a manner to bring the issue before the Court with a minimum of cost and delay. This is, of course, a point which could be made in many, many contested applications. In a perfect world this could be said of every application. Nevertheless, the applicants consented to the respondents' proposal that the application be heard as a single preliminary issue rather than an interlocutory injunction. Submissions were filed in a short period of time and their counsel presented a focused and efficient argument.
44 The second matter to which the applicants referred is the depth of public controversy surrounding the respondents' shark control programme. Sea Shepherd Australia and Ms Burden urged me to take judicial notice of national and international media attention and controversy surrounding the programme. They urged me to consider the Parliamentary debates about the programme. They referred to rallies against the programme.
45 Even if judicial notice of these matters could be taken, it is very difficult to see how any conclusion drawn from these matters could be relevant to an assessment concerning costs orders. The interest of the public is not what is meant by the legal phrase 'public interest'. Indeed, as I explain in the conclusion to these reasons, the legal phrase 'public interest' is pregnant with ambiguity, uncertainty, and indeterminacy. Even if the extent of public concern was relevant to determining 'public interest', in the absence of expert evidence how could the depth and extent to which vocal public responses are truly representative be measured by a court? How could a court assess whether public concern about a programme means that litigation concerning the programme is in the interests of the public? Would such an assessment require examination of the validity or justification of the public concern? Does this require the court to engage in an exercise of weighing any arguments concerning the merits of the policy with arguments of demerit? These type of questions are classically issues of policy. They are questions which the legislature, advised by experts, and accountable to the public, is far better suited to answer. This is so even if, in some quarters, a distinction between legal principle (the domain of the judiciary) and public policy is not considered fashionable.
Conclusion
46 My conclusion is that the appropriate costs order in this case is the rare, and exceptional, order that there be no order as to costs. In conclusion it is necessary, however, to make three points.
47 The first point is that many of the cases relied upon by the parties for the exercise of the costs discretion in those cases often turn upon particular circumstances. Analogy can be deceptive. This can particularly be illustrated by reference to the decision in Oshlack upon which both parties placed considerable emphasis.
48 Oshlack was an appeal from the exercise of a costs discretion rather than an exercise of that discretion afresh. In Hanlon v Brookes,42 Callaway JA said:
It is almost invariably the case that the judge at first instance is better placed to deal with the costs after a long trial and counsel seeking leave ordinarily has a difficult task. The test is not whether we should have exercised the discretion in the same way as his Honour did but whether there was or were a ground or grounds on which he could reasonably do so.
49 For this reason, the task faced by an appellant seeking to overturn a discretionary decision in relation to costs has been described as 'extraordinarily difficult'.43 Where, as in Oshlack, the discretionary decision is not overturned this still leaves open the possibility that the opposite conclusion could have been reached. Only Kirby J expressly said that he would have reached the same conclusion as the primary judge.44
50 Further, very shortly after Oshlack, the High Court (including Kirby J) refused special leave and awarded costs against an applicant who sought to enforce environmental laws for the benefit of the general public.45 The applicant in that case had been refused special leave to appeal from a decision that struck out its statement of claim and gave only limited leave to replead.
51 The second point is that, contrary to the apparent suggestion in some of the written submissions, the exercise of the costs discretion is not a matter of 'counting' which of the factors present in one case or another are present in the instant case. Different factors may have different weight in different cases. Nevertheless, it is established that none of the factors upon which I have relied will generally be sufficient, by itself, for there to be sufficiently exceptional circumstances to depart from the usual rule as to costs. For instance, it 'has not generally been considered a sufficient basis' for departing from the usual costs order that a case raises important and difficult questions of law affecting many people.46 It is not sufficient that the applicant sought no financial gain from the litigation.47 It is not sufficient that proceedings be characterised as 'public interest'.48
52 The third point concerns the emphasis placed by the parties in this case on the notion of 'public interest'. As Buss JA said in dissent in Roe,but not on this point, 'there are no special rules as to costs which apply to so-called "public interest" litigation'.49 The concept of 'public interest' can also create difficulty. As Gaudron and Gummow JJ explained,50 it is a 'nebulous concept'51 unless given 'further content of a legally normative nature' and can distract attention from the legal issue at stake. In Ruddock v Vadarlis (No 2),52 Black CJ and French J said that '[t]he 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'.
53 This is not to follow the dissenting decision of McHugh J (with whom Brennan CJ agreed) in Oshlack, but the ambiguity about 'public interest' does lend force to his Honour's remarks that the concept of 'public interest' does not describe53
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 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.
54 In light of my conclusion that there should be no order as to costs it is not necessary to consider the alternative submission of Sea Shepherd Australia and Ms Burden that they should bear only a portion of the costs of the respondents.
1Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [13] (Martin CJ & Murphy JA).
2Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 567 (McHugh J).
3Supreme Court Act 1935 (WA) s 37; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
4Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 [67] (McHugh J).
5Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [13] (Martin CJ & Murphy JA).
6Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.
7Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S).
8Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 80 - 81 [20] (Gaudron & Gummow JJ).
9Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 127 [144].
10Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 84 [31].
11Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S).
12Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [13] citing South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008, 1008 - 1009 [5] - [6] (Kirby J); Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 [11] (the Court).
13Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [14] - [24].
14Blue 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].
15Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 [15] - [21].
16Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66.
17Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.
18South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008, 1009 [6] (Kirby J).
19Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S).
20 Written submissions of the respondents [12].
21 Written submissions of the respondents [22].
22 Letter to the Court dated 16 April 2014.
23Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J).
24Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 [33] - [37].
25Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [22] (Martin CJ & Murphy JA).
26 Respondents' written submissions [20].
27Re Mersey Railway Co(No 1)(1888) 37 Ch D 610.
28Re Mersey Railway Co(No 1)(1888) 37 Ch D 610, 619.
29Liversidge v Anderson [1942] AC 206.
30Liversidge v Anderson [1942] AC 206, 283.
31Ruddock v Vadarlis (No 2) (2001) 115 FCR 229.
32Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 241 - 242.
33 Respondents' written costs submissions [15].
34 Sea Shepherd Australia's supplementary costs submissions [34].
35Mining Act 1978 (WA) s 19(1)(b).
36Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 [42].
37Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488, 520 (Roberts-Smith J).
38Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58.
39Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615.
40Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 80 - 81 [20], 91 [49] (Gaudron & Gummow JJ); Attrill v Richmond River Shire Council(1995) 38 NSWLR 545, 556 (Kirby P, Clarke JA agreeing).
41 ts 66.
42Hanlon v Brookes (1997) 15 ACLR 1626, 1632. See also Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 [10] (Redlich JA).
43Transport Accident Commissioner v O'Reilly [1998] VSCA 106; [1999] 2 VR 436, 457 (Ormiston JA); Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167 [109] (Newnes JA; Martin CJ & Beech J agreeing).
44Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 127 [144].
45South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008.
46Construction Forestry Mining & Energy Union v Queensland Coal & Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174; (2003) 132 FCR 516, 519 [6] (Wilcox J).
47Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 237 - 238 (Black CJ & French J); Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [15] (the Court).
48Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [15] (Martin CJ & Murphy JA).
49Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [95].
50Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 84 [30].
51 See South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307, 311 (Tadgell J).
52Ruddock v Vadarlis (No 2)(2001) 115 FCR 229, 236 (Black CJ & French J).
53Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 100 [75].
0
20
3