Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20

Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20

Given the applicant's standing as a public interest litigant, the absence of personal gain, the arguable nature of the statutory construction question, the broader public importance of the issues raised, and analogies with the reasoning in Oshlack and subsequent authorities, special circumstances justified departure from the usual order as to costs; thus, each party should bear its own costs of the hearing and determination of the separate question.

Jurisdiction
Australia
Judgment Date
26 February 2021
Procedural Posture
Costs Application / Post Separate Question Determination, Costs Ruling
Outcome
No order as to costs; each party to bear its own costs of the hearing and determination of the separate question.
Legal Topics
['costs Discretion' 'public Interest Litigation' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'separate Question Procedure']
['administrative Law' 'environmental Law' 'costs Law'] ['costs Discretion' 'public Interest Litigation' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'separate Question Procedure']

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Procedural Posture

Costs Application / Post Separate Question Determination, Costs Ruling

Legal Issues

  1. 1 ['Whether to depart from the usual rule that costs follow the event in the context of environmental public interest litigation' 'Whether each party should bear their own costs in light of the circumstances']

Ratio Decidendi

Given the applicant's standing as a public interest litigant, the absence of personal gain, the arguable nature of the statutory construction question, the broader public importance of the issues raised, and analogies with the reasoning in Oshlack and subsequent authorities, special circumstances justified departure from the usual order as to costs; thus, each party should bear its own costs of the hearing and determination of the separate question.

Court Disposition

No order as to costs; each party to bear its own costs of the hearing and determination of the separate question.

Orders

  • ['Each party bear its own costs of the hearing and determination of the separate question.' 'It is a matter for the primary judge to make orders in respect of the amended originating application.']