Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 215

FEDERAL COURT OF AUSTRALIA

Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 215 Citation: Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 215

Parties: NORTHERN INLAND COUNCIL FOR THE ENVIRONMENT INC v MINISTER FOR THE ENVIRONMENT and BOGGABRI COAL PTY LTD (ACN 001 787 711)

File number: NSD 1403 of 2013

Judge: COWDROY J

Date of judgment: 12 March 2014

Corrigendum: 13 March 2014

Catchwords: COSTS – circumstances where the applicant was unsuccessful on the substantive application in the proceeding – whether the proceeding constitutes public interest litigation – whether the special circumstances of the proceeding justifies either no order as to costs in the proceeding or an apportionment of such costs

Legislation: Federal Court of Australia Act 1976 (Cth) s 43

Cases cited: Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 216

Date of hearing: Heard on the papers

Date of last submissions: 17 February 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Solicitor for the Applicant: Ms S Higginson of Environmental Defender's Office NSW

Counsel for the First Respondent: Ms A Mitchelmore

Solicitor for the First Respondent: HWL Ebsworth Lawyers

Solicitor for the Second Respondent: Mr P Briggs of Herbert Smith Freehills

FEDERAL COURT OF AUSTRALIA

Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 215

CORRIGENDUM

1. In paragraph 5 of the Reasons for Judgment, replace both references to 'Aston Coal' with the words 'Boggabri Coal'. I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 13 March 2014 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1403 of 2013

BETWEEN: NORTHERN INLAND COUNCIL FOR THE ENVIRONMENT INC

Applicant

AND: MINISTER FOR THE ENVIRONMENT

First Respondent

BOGGABRI COAL PTY LTD (ACN 001 787 711)

Second Respondent

JUDGE: COWDROY J DATE OF ORDER: 12 MARCH 2014 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Applicant pay 80% of the costs of the First and Second Respondents, save as to order 2. 2. There be no order as to costs in relation to the preparation of written submissions on the issue of costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1403 of 2013

BETWEEN: NORTHERN INLAND COUNCIL FOR THE ENVIRONMENT INC

Applicant

AND: MINISTER FOR THE ENVIRONMENT

First Respondent

BOGGABRI COAL PTY LTD (ACN 001 787 711)

Second Respondent

JUDGE: COWDROY J DATE: 12 MARCH 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Judgment in this proceeding was delivered on 20 December 2013: Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1418 ('the primary judgment'). The issue of costs was reserved on that occasion, and is now the subject of this judgment. The power of the Court to award costs is pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth).

BACKGROUND 2 The background to this proceeding is contained in the primary judgment. By way of summary, the applicant ('NICE') sought judicial review of a decision of the first respondent ('the Minister') made on 11 February 2013 ('the application'). The Minister's decision, which was made pursuant to ss 130 and 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act'), approved an application by the second respondent ('Boggabri Coal') to construct and operate an extension to the Boggabri Open Cut Mine located 15 km north east of the township of Boggabri in New South Wales ('the project'). The application was heard concurrently with another judicial review application by NICE ('the Maules Creek proceeding'), the subject of which was a decision by the Minister to approve an application by Aston Coal 2 Pty Ltd to construct and operate a new open cut coal mine and associated infrastructure approximately 18 km north-east of the township of Boggabri in New South Wales: see Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419. 3 Costs were reserved in respect of the Maules Creek proceeding, and a decision on costs has been delivered: see Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 216 ('the Maules Creek costs judgment'). The issues in relation to the costs of the Maules Creek proceeding are substantially the same as those in the present proceeding. Indeed, the submissions of NICE in both proceedings, and those of the Minister, were relevantly identical. As such, the reasons below will largely refer to and adopt the reasons in the Maules Creek costs judgment. 4 The application originally raised five grounds of review. One such ground was abandoned prior to the hearing, whilst a further three grounds were abandoned during the hearing. The only remaining ground of the application was whether the Minister took into account an irrelevant consideration, being the alleged leaking by the New South Wales ('NSW') Government of commercially sensitive information: ss 5(1)(e) and 5(2)(a) of the Administrative Decision (Judicial Review) Act 1977 (Cth). 5 As in the Maules Creek costs judgment, each party has filed written submissions on the issue of costs. NICE submits that no order as to costs should be made due to certain circumstances related to the proceeding being properly characterised as public interest litigation. Alternatively, NICE submits that it should only be liable for a proportion of each of the respondent's costs. Both the Minister and Aston Coal submit that the circumstances of the proceeding do not justify departing from the ordinary rule that costs follow the event. In the alternative, Aston Coal seeks 75% of its costs.

PRINCIPLES 6 The principles referred to at [6]–[9] in the Maules Creek costs judgment apply with equal force to this proceeding.

CONSIDERATION

Financial or personal interests 7 The principles and findings referred to at [10]–[13] in the Maules Creek costs judgment also apply with equal force to this proceeding.

Public interest in, and practical implications of, the proceeding 8 The principles and findings referred to at [14]–[17] in the Maules Creek costs judgment also apply with equal force to this proceeding. There is however a factual discrepancy; whereas there were 110 relevant public submissions in respect of the project the subject of the Maules Creek proceeding, there were 211 public submissions in respect to the project in the present proceeding. The Court does not consider that the different number of public submissions has any impact on the adoption of the relevant principles and findings in the Maules Creek costs judgment.

Novel or difficult questions of law 9 NICE submits that the question of whether the Minister took into account an irrelevant consideration, being the alleged leaking by the NSW Government of commercially sensitive information, involved a novel issue of law. Such issue was said to be the proper construction of s 136(5) of the EPBC Act in the context of the Minister's decision making powers. 10 Similarly to the findings at [19] of the Maules Creek costs judgment, the application was rejected on a factual basis, that being that the alleged disclosure was not taken into account by the Minister in deciding whether to approve the project or what conditions to attach to an approval. Whilst there was argument on the proper construction of s 136 of the EPBC Act, no novel or difficult question of law was raised and certainly not one of general importance.

Whether the application was arguable 11 The application was arguable, but it was not particularly strong. The 'serious and detailed consideration' (being the words of NICE) in the primary judgment is not indicative of the complexity or strength of NICE's arguments.

NICE's conduct of its case 12 NICE submits that it conducted its case expediently and diligently for two main reasons. First, the application was filed within one month of the statement of reasons for the Minister's decision to approve the project being published. Secondly, NICE did not oppose Boggabri Coal's interlocutory application to expedite the hearing. 13 It is accepted that NICE acted with due expediency and diligence, subject to one important factor. It was found in the Maules Creek costs judgment at [23] that conducting a case properly involves 'ensuring that appropriate consideration is given to the arguments that should be agitated, and whether evidence, in an admissible form, exists to support the applicant's claims'. It can be added that such consideration should occur as early as possible. 14 NICE abandoned three grounds of its application during the hearing. Whilst it is desirable that an applicant amend an application prior to hearing so as to remove arguments that it no longer wishes to raise, some consideration must be had for the fact that the present proceeding was heard concurrently with the Maules Creek proceeding. It may be assumed that having heard the arguments in the Maules Creek proceeding, NICE re-evaluated the strength of each of the grounds of its application and decided to only press the first such ground.

CONSIDERATION 15 It is clear that almost identical considerations apply in the present proceeding as those in the Maules Creek proceeding with regard to costs. Similarly, the public interest nature of the litigation weighed against the arguable but not particularly strong ground of the application means that in the Court's discretion NICE should bear a substantial proportion of the costs of the application. That proportion will be 80% of the costs of both the Minister and Boggabri Coal. 16 Each party should bear their own costs of preparing written submissions on the issue of costs given that each has had a measure of success. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 12 March 2014