Tasmanian Conservation Trust Incorporated v Forest Practices Authority (No 2)
[2022] TASSC 36
•8 June 2022
[2022] TASSC 36
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmanian Conservation Trust Incorporated v Forest Practices Authority (No 2) [2022] TASSC 36
PARTIES: TASMANIAN CONSERVATION TRUST
INCORPORATED
v
FOREST PRACTICES AUTHORITY
TUCKER, John William
TUCKER, John Ewart
FILE NO: 239/2015
DELIVERED ON: 8 June 2022
DELIVERED AT: Hobart
HEARING DATE: On Written Submissions
JUDGMENT OF: Estcourt J
CATCHWORDS:
Procedure – Costs – General rule – Costs follow the event – Costs of issues – Exercise of discretion – No disentitling conduct on the part of the applicant – Readily discernible discrete and severable issues – Failure on some issues not amounting to good and exceptional reason to depart from the usual order for costs – Costs orders not punitive.
John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd [2017] TASFC 14; Attorney-General v University of Tasmania [2020] TASFC 12; CMB v Mental Health Tribunal (No 2) [2021] TASFC 7, referred to.
Aust Dig Procedure [557]
REPRESENTATION:
Counsel:
Applicant: L De Ferrari SC, K Chan
First Respondent: P Turner SC
Third Respondent: A Spence SC
Solicitors:
Applicant: Environmental Defenders Office Inc (Tas)
First Respondent: Solicitor-General
Third Respondent: Page Seager
Judgment Number: [2022] TASSC 36
Number of paragraphs: 22
Serial No 36/2022
File No 239/2015
TASMANIAN CONSERVATION TRUST INCORPORATED v
FOREST PRACTICES AUTHORITY & JOHN WILLIAM TUCKER &
JOHN EWART TUCKER
REASONS FOR JUDGMENT ESTCOURT J
8 June 2022
The application for costs
For the reasons I gave in Tasmanian Conservation Trust Incorporated v Forest Practices Authority [2022] TASSC 29, I upheld the applicant's application to review, and pursuant to s 27(l)(a) of the Judicial Review Act 2000 I quashed the first named respondent's decision made on 27 January 2015 to certify Forest Practices Plan MAC 1435.
The applicant now seeks an order that the first and third named respondents jointly and severally pay the applicant's costs of the proceeding, including reserved costs, to be taxed in default of agreement.
The application is opposed by the first named respondent, which contends, at worst, for an order against it that it pay 5% of the applicant's costs, being that which it says may reasonably be attributed to a point sought to be raised by it concerning the failure of its delegate, Greg Williams, to consider a relevant policy.
The application is also opposed by the third named respondent who contends for an order that the first and third named respondents pay 60% of the applicant's costs and for an order that the third named respondent be granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1968.
For the reasons that follow, I am of the view that fairness dictates that my discretion as to costs as between the applicant and the third named respondent should be exercised on the usual basis, giving the applicant the whole of its costs, notwithstanding its failure on particular issues. In the result that should be an order that the third respondent pay 95 % of the applicants costs of the proceeding, including reserved costs, to be taxed on a party and party basis in default of agreement. And I am of the view that the first named respondent should pay 5% of the applicant's costs of the proceeding, including any reserved costs, to be taxed on a party and party basis in default of agreement. The third respondent should be granted an indemnity certificate.
The application for review
Counsel for the third named respondent, Mr Spence SC, submits that the applicant's challenges to the impugned decision fell into two broad categories. Firstly, that which was specific to the facts of the matter and secondly, the way in which the Forest Practices Act 1985 and the Nature Conservation Act 2002 were to be applied to the facts.
As to the application for an order of review, Mr Spence contends in his written submissions:
"Ground 1 was in the following terms:
15 The decision under review was not authorised by the enactment under which it was purported to be made (within the meaning of s 17(2)(d) of the JR Act), and/or the making of it was an improper exercise of the power conferred by that enactment (within the meaning of s 17(2)(e) of the JR Act), and/or it involved an error of law (within the meaning of s 17(2)(f) of the JR Act).
The Applicant also says that the decision under review is vitiated by jurisdictional error such that it is, in law, no decision at all.
Particulars
(a) The 2015 Plan is not the same as the 2009 Plan.
(b) It is not the case that, when on 27 January 2015 the 2015 Plan was submitted to the FPA, Tucker Jnr, purportedly as agent of Tucker Snr, was 'reapplying' within the meaning of s 44(7) of the NC Act.
(c) The compensation application had not been refused by the Minister pursuant to the discretion conferred by s 41(3)(b) of the NC Act. Rather, it had failed by operation of s 41A of the NC Act, upon the Minister failing to be satisfied that Tucker Snr had 'undertaken to manage the threatened native vegetation community under a conservation covenant or management agreement'.
(d) By reason of any one of (a) to (c) above, s 44(7) of the NC Act was not satisfied.
(e) By reason of (d) above, s 44(8) of the NC Act did not operate to deny power to the FPA to refuse to certify the 2015 Plan."
Whilst within the same ground, there were three distinct and separate legal issues. The applicant was successful on ground (a), it was unsuccessful on grounds (b) and (c).
In our submission, when considering the time devoted to issues, ground (c) was the one which occupied most of the time and was most important as it will apply to future applications."
I accept that submission as an accurate assessment.
Mr Spence continues in his written submissions as to costs:
"Ground 2 (without particulars) was in the following terms:
16 Williams, as delegate of the FPA, did not have the power to make the decision under review, as he did not have jurisdiction to make the decision (within the meaning of s17(2)(c) of the JR Act), and/or the decision under review was not authorised by the enactment under which it was purported to be made (within the meaning of s 17(2)(d) of the JR Act), and/or the making of it was an improper exercise of the power conferred by that enactment (within the meaning of s 17(2)(e) of the JR Act), and/or it involved an error of law (within the meaning of s 17(2)(f) of the JR Act).
The Applicant also says that the decision under review is vitiated by jurisdictional error such that it is, in law, no decision at all."
The applicant was successful on this ground under two elements, firstly 'The scope of Williams' delegation' and secondly, 'Acting under direction'."
That assessment is correct.
And finally, Mr Spence submits:
"Ground 3 was in the following terms:
17 The procedures that were required by law to be observed relating to the making of a decision of the kind of the decision under review were not observed (within the meaning of s 17(2)(b) of the JR Act), and/or the decision under review was not authorised by the enactment under which it was purported to be made (within the meaning of s 17(2)(d) of the JR Act), and/or the making of it was an improper exercise of the power conferred by that enactment (within the meaning of s 17(2)(e) of the JR Act), and/or it involved an error of law (within the meaning of s 17(2)(f) of the JR Act).
The Applicant also says that the decision under review is vitiated by jurisdictional error such that it is, in law, no decision at all.
Particulars
(a) Even if Williams had delegated authority (which is denied - see Ground 2 above), there was no valid application 'made in accordance with section 18'that could enliven the power in s 19(1) of the FP Act to certify or refuse to certify, because:
i. For an application to be validly made in accordance with s 18 of the FP Act, the forest practices plan must contain 'specifications of the forest practices to be carried out on the land referred to in the plan in connection with the harvesting of timber or the clearing of trees or the clearance and conversion of a threatened native vegetation community … in accordance with the Forest Practices Code as in force at the time the forest practices plan is prepared', in accordance with s 18(2)(a) and (3)of the FP Act.
ii. The 2015 Plan did not contain the specifications required.
(b) Even if a valid application was made in accordance with s 18 of the FP Act (which is denied - see (a) above), Williams did not consider, and therefore could not have been satisfied of, the matters in s 19(1AA) of the FP Act."
The Applicant was wholly unsuccessful in respect to this.
Therefore, a fair broad-brush analysis is the Applicant was unsuccessful on half of the matters it put forward including, I submit, the one that occupied most of the time, ground 1(c), and was the most important.
These various grounds were distinct and severable."
I also accept that assessment as correct, save that in my view, on an issue by issue basis the applicant was closer to 60% successful, having regard to the length and complexity of the written submissions filed on the application for an order of review, the respective amount of time devoted to the issues in oral argument, the relative dispositive importance of the issues and the outcome of the application.
Discussion
It is to be acknowledged that in John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd [2017] TASFC 14, Porter AJ said at [222]:
"222 Ultimately, fairness dictates how the discretion as to costs should be exercised, and if an issue by issue approach produces a result that is fairer than giving the successful party the whole of the costs notwithstanding the failure of particular issues, then the issue by issue approach should be adopted: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 per Finkelstein and Gordon JJ at [5]. As noted in Bostik Australia (above), in a case that justifies an issue by issue approach, a court may adopt a 'rough and ready' assessment giving rise to an apportionment: Bowen Investments at [5]. Awarding a proportion of costs in favour of one party is the more usual approach: Law of Costs (above) at [8.5]. In some cases however, it may be appropriate to order costs for and against a party on the basis of the success or failure of each of the issues."
However in the following paragraph in his reasons his Honour went on to say:
"223 The merits of the two approaches are discussed in Law of Costs at [8.7]-[8.8]. The 'broad brush' or impressionistic approach is favoured. There have been expressions of caution about adopting the issue won/lost approach, which was of course, the approach of the primary judge in this case. In Sanders v Snell (No 2) [2000] HCATrans 303; (2000) 174 ALR 53, Kirby J at [15] said that it is not usual for the court to specify that costs will only be payable in respect of particular issues, 'unless there are good and exceptional reasons in the particular case to do so.' See also Firebird (above) at [6]. It has been observed that the approach may have general adverse effects in relation to the conduct of litigation, and may present significant difficulties for the taxing officer in quantification: see for instance Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 at [6]- [7]; Cretazzo v Lombardi (1975) 13 SASR 4 at 16; Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132, 12 Tas R 325 at [26]." (My emphasis.)
And, as counsel for the applicant, Ms De Ferrari SC and Ms Chan submit, the Full Court in Attorney-General v University of Tasmania [2020] TASFC 12 at [127], in a case where there was no disentitling conduct on the part of the applicant that could justify depriving it of the usual costs order, approved what the Court of Appeal of Western Australia said in Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 at [6]-[8]:
"[6] The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67]–[68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.
[7] In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
[8] In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S), the position was put as follows:
[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way."
In my view, while there are "readily discernible" "discrete and severable issues" in the present case, those on which the applicant failed were not so significant as to amount to "good and exceptional" reasons to depart from the usual order. There was no disentitling conduct on the part of the applicant in the present case.
John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd (above) was a different case. There were grounds of appeal in that case which Porter AJ remarked "were probably unreasonably pursued". That cannot be said in the present case. All that can be said in this case is that the applicant was unsuccessful on some grounds.
As to the first named respondent, it chose to involve itself in the proceeding and file affidavit material and written submissions, after it had filed a notice of submission and had accepted that the impugned decision was indefensible. It may have done so with the best of intentions to assist the Court, but it intermeddled unnecessarily. The issues in the proceeding were well joined and there was no need to think that the principal parties, represented as they each were by senior counsel, would not provide the Court with all the assistance that was needed. The third named respondent having intervened, it was necessary for the applicant to consider the material put on and to deal with it, even if the first named respondent was in the same camp as the applicant.
Neither the applicant nor the third named respondent should be required to bear any of the costs occasioned by the decision of the first named respondent to become involved in the proceeding. In my view that cost is fairly estimated by counsel for the first named respondent, Mr Turner SC, at the maximum percentage contribution conceded by him of 5% of the applicant's costs.
Counsel for the applicant submit that:
"This Court should make it very clear to the FPA that it simply cannot engage in this type of conduct in judicial review litigation. It cannot have its cake (of 'I am just here to assist the Court, but that complies with the Hardiman principle'), and eat it too ('but I am not going to say anything to assist the Court on this topic, because now the invalidity of delegations has become a political issue, requiring Parliament to deal with it urgently by way of amending legislation')."
I note however that in CMB v Mental Health Tribunal (No 2) [2021] TASFC 7, Pearce J (with whom Wood and Geason JJ agreed) said:
"[4] The power to award costs is a discretionary power. In this jurisdiction it derives from the Supreme Court Civil Procedure Act 1932, s 12, and the Supreme Court Rules 2000, r 672(6). The most important principle by reference to which the discretion is to be exercised is that the successful party is generally entitled to his or her costs by way of indemnity, or at least partial indemnity, against the expensive litigation that should not, in justice, have been visited upon that party. The aim of awarding costs as between the parties to litigation is not punitive, but to compensate to at least some extent the successful party for the legal costs incurred by reason of the proceedings." (Emphasis added.)
Disposition
I order that the third respondent pay 95% of the applicants costs of the proceeding, including reserved costs, to be taxed on a party and party basis in default of agreement. And I order that the first named respondent pay 5% of the applicant's costs of the proceeding, including any reserved costs, to be taxed on a party and party basis in default of agreement. The third respondent is granted an indemnity certificate in respect of the proceeding, pursuant to s 8(1)(ii) of the Appeal Costs Fund Act 1968.
0
13
0