Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources

The case of Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources, involved a dispute concerning the interpretation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Gunns Ltd appealed against a decision of the Federal Court which had found it had contravened the EPBC Act by carrying out a forestry operation without the required approval. The Minister for the Environment and Water Resources intervened in the proceedings and sought an order that Gunns Ltd pay the costs of the appeal on a party/party basis. Gunns Ltd contended that it was entitled to its costs of and incidental to the appeal, including reserved costs and the costs of the application for costs, on a party/party basis.

The primary issue for the court was whether Gunns Ltd, as the unsuccessful appellant, should be ordered to pay the costs of the Minister, as the successful respondent, on a party/party basis. The court considered the principles governing the exercise of the Court’s discretion to award costs, including the relevance of the general importance of the issues in the appeal and the reasonableness of the appellant in bringing the appeal. The court found that the issues in the appeal were of critical importance to the Minister in the performance of his responsibilities as the Minister responsible for the administration of the EPBC Act. The court also found that Gunns Ltd was not seeking financial gain from the litigation, but rather was seeking to resolve a dispute concerning the proper administration of the EPBC Act in the Court.

The court held that, in the exercise of its discretion to award costs, it should take into account the general importance of the clarification of the law for such an authority as the respondent. The court found that the appeal raised novel questions of general importance and that Gunns Ltd had not acted unreasonably in bringing the appeal. The court therefore ordered that Gunns Ltd pay 70% of the costs of the Minister and 40% of the costs of the Wilderness Society Inc.