Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84

The appellant did not establish special circumstances justifying any departure from the ordinary costs rule. Its non-profit status and lack of financial interest were relevant but insufficient; the evidence did not clearly show that the appeal was public interest litigation of the kind warranting a special costs order; the appeal raised essentially factual issues and no substantial new point of principle; and the appeal, though arguable, did not have strong prospects of success. The appellant was therefore ordered to pay the respondents' costs of the appeal.

Jurisdiction
Australia
Judgment Date
07 July 2011
Procedural Posture
Costs Determination on Appeal / Determined on the Papers After the Appeal Was Dismissed, Following Written Submissions as to Costs
Outcome
The appellant's application for a special costs order was refused; the appellant was ordered to pay the costs of the respondents.
Legal Topics
['public Interest Litigation' 'costs Discretion' 'whether to Depart From Usual Costs Order' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'mandatory Considerations']
['costs' 'administrative Law' 'environmental Law'] ['public Interest Litigation' 'costs Discretion' 'whether to Depart From Usual Costs Order' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'mandatory Considerations']

Case Brief

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Procedural Posture

Costs Determination on Appeal / Determined on the Papers After the Appeal Was Dismissed, Following Written Submissions as to Costs

Legal Issues

  1. 1 ["Whether the appellant should be relieved from paying the respondents' costs of the appeal on the basis that the appeal was public interest litigation." "Whether the Court should make no order as to costs or award only a limited portion of the respondents' costs." 'Whether the appeal raised a novel question of general importance sufficient to justify a special costs order.']

Ratio Decidendi

The appellant did not establish special circumstances justifying any departure from the ordinary costs rule. Its non-profit status and lack of financial interest were relevant but insufficient; the evidence did not clearly show that the appeal was public interest litigation of the kind warranting a special costs order; the appeal raised essentially factual issues and no substantial new point of principle; and the appeal, though arguable, did not have strong prospects of success. The appellant was therefore ordered to pay the respondents' costs of the appeal.

Court Disposition

The appellant's application for a special costs order was refused; the appellant was ordered to pay the costs of the respondents.

Orders

  • ['The appellant pay the costs of the respondents.' 'The appellant is to pay the costs of the respondents to be taxed if not agreed.']