Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095

Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095

Although the applicant was unsuccessful, several factors justified departing from the usual costs order: the proceeding concerned substantial public interest in Adani's project and the possible effects of climate change on the Reef; the applicant sought no financial gain; the remaining judicial review grounds were arguable and included important and difficult statutory construction issues under the EPBC Act; and Adani played a larger role than necessary, causing duplication with the Minister's submissions. Taking those matters into account, the applicant was ordered to pay 70 per cent of the Minister's costs and 40 per cent of Adani's costs.

Jurisdiction
Australia
Judgment Date
08 September 2016
Procedural Posture
Costs in Judicial Review Proceedings Concerning Approval of a Coal Mining Project Under the Environment Protection and Biodiversity Conservation Act 1999 (cth) / Heard on the Papers After Dismissal of the Applicant's Amended Originating Application for Judicial Review
Outcome
The applicant's alternative costs position was accepted.
Legal Topics
['judicial Review' 'public Interest Litigation' 'costs Discretion' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'coal Mining Project Approval']
['administrative Law' 'environmental Law' 'costs'] ['judicial Review' 'public Interest Litigation' 'costs Discretion' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'coal Mining Project Approval']

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Procedural Posture

Costs in Judicial Review Proceedings Concerning Approval of a Coal Mining Project Under the Environment Protection and Biodiversity Conservation Act 1999 (cth) / Heard on the Papers After Dismissal of the Applicant's Amended Originating Application for Judicial Review

Legal Issues

  1. 1 ['Whether special circumstances justified departing from the usual rule that costs follow the event in unsuccessful public interest environmental litigation.' "Whether the applicant should pay no costs or only a percentage of each respondent's costs." "Whether the second respondent's role in the proceeding justified reducing its recoverable costs."]

Ratio Decidendi

Although the applicant was unsuccessful, several factors justified departing from the usual costs order: the proceeding concerned substantial public interest in Adani's project and the possible effects of climate change on the Reef; the applicant sought no financial gain; the remaining judicial review grounds were arguable and included important and difficult statutory construction issues under the EPBC Act; and Adani played a larger role than necessary, causing duplication with the Minister's submissions. Taking those matters into account, the applicant was ordered to pay 70 per cent of the Minister's costs and 40 per cent of Adani's costs.

Court Disposition

The applicant's alternative costs position was accepted.

Orders

  • ['The applicant pay 70 per cent of the costs of the first respondent and 40 per cent of the costs of the second respondent, as agreed or assessed.']