The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources

The Wilderness Society Inc, an environmental non-profit organisation, filed an action against the Turnbull, who was the Minister for the Environment and Water Resources, and the Commonwealth of Australia, challenging a decision to approve a coal seam gas exploration licence. The Federal Court was tasked with determining the legal issues related to the costs awarded in the case. The central issue was whether the court's discretion under section 43 of the Federal Court Act permitted it to order the applicant to pay the respondents' costs given the public interest considerations raised by the applicant. The court also considered whether there were exceptional special circumstances that warranted a departure from the usual order that costs follow the event.

The court acknowledged that the discretion under section 43 was broad and that the usual practice was for costs to follow the event, meaning the unsuccessful party pays the successful party's costs. However, the court recognised that public interest considerations could justify a departure from this rule. The applicant argued that factors such as the protection of the environment, proper administration of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), its altruistic motives, and the importance of not discouraging access to the courts supported a departure from the usual order. The court found these considerations relevant but not sufficiently exceptional to justify a departure from the usual order, especially given that the respondents had completely succeeded in the litigation.

Ultimately, the court held that the applicant's case did not present the kind of exceptional special circumstances that would warrant a departure from the usual order of costs. The applicant's motivations and the public interest considerations, while valid, did not outweigh the respondents' legitimate expectation of being awarded their costs due to their complete success in the litigation.

The court ordered that the applicant pay the respondents' costs of the proceeding, to be taxed in default of agreement, and dismissed the second respondent's motion without adjudication of its merits and without ordering costs for that motion.