SIUDGMENT No. 225788 _ CATCHWORDS COSTS - Whether successful respondent in Judicial Review matter should be penalized for unsuccessful arguments on locus standi and as to whether there was an administrative decision - Hughes v. Western Australian Cricket Association (1986) A.T.P.R. at 48,136-7 applied - Intervener not necessarily entitled to costs, though successful - Discussion of liability of "public interest" bodies to costs orders, with reference to the problem of individuals risking costs in public interest suits (Kent v. Cavanagh 1 A.C.T.R. at 55) - Rejection of claim to a costs order made by members of a tribunal alleged to have denied natural justice (Ex parte Hardiman 144 C.L.R. at 17, 35-6 referred to), and order made for costs as submitting respondents. Federal Court of Australia Act, 1976 - s.43 AUSTRALIAN CONSERVATION FOUNDATION & ORS. -V- FORESTRY COMMISSION & ORS. No. TG 14 of 1987 Burchett J. Sydney 3 May 1988 IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. TG14 of 1987 GENERAL DIVISION BETWEEN: AUSTRALIAN CONSERVATION FOUNDATION, the WILDERNESS SOCIETY INC. and TASMANIAN CONSERVATION TRUST INC. Applicants lz Zz iw] FORESTRY COMMISSION First Respondent E Zz o MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE, PETER PHILLIP HITCHCOCK Second Respondents COMMONWEALTH OF AUSTRALIA Third Respondent MINUTE OF ORDERS OF THE COURT Judge Making Orders: Burchett J. Where Made: Sydney Date of Orders: 3 May 1988 THE COURT ORDERS THAT: {1) The applicants pay the costs of the first respondent, but not to include any costs in respect of the appearance in court on Wednesday 17 February 1988. (2) The applicants pay the costs of Gunns Kilndried Timber Industries Limited. (3) The applicants pay the costs of the second respondents, as submitting respondents. 2. (4) No order as to the costs of the third respondent, the Commonwealth of Australia. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. TG14 of 1987 we we ww GENERAL DIVISION BETWEEN: AUSTRALIAN CONSERVATION FOUNDATION, the WILDERNESS SOCIETY INC. and TASMANIAN CONSERVATION TRUST INC. Applicants Bd z iw] FORESTRY COMMISSION First Respondent hd z oO MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE, PETER PHILLIP HITCHCOCK Second Respondents iE z iw) Pry COMMONWEALTH OF AUSTRALIA Third Respondent REASONS FOR JUDGMENT BURCHETT J. I heard this matter in Hobart on 15, 16 and 17 February 1988, and gave judgment dismissing the application on 19 February 1988. At that time, I reserved liberty to the respondents to the application and to a company Gunns Kilndried Timber Industries Limited (Gunns), which had been made respondent to a motion taken out by the applicants with a view to the obtaining of interlocutory relief, to seek orders in respect of their costs. 2. In order to avoid the expense of a further hearing in Hobart, or of legal representatives travelling from Hobart to apply elsewhere, it was arranged that any submissions in respect of costs would be made in writing with a view to my handing down a decision upon them in Sydney. I have now received submissions from the first respondent (the Tasmanian State Forestry Commmission), seeking an order for its costs against the applicants (the Australian Conservation Foundation and two other bodies having similar objectives) on the basis that the costs should follow the event; from the applicants, seeking an order for costs against the first respondent in respect of certain preliminary objections, and that no order should be made in respect of the costs of the principal application, or alternatively, simply, that no order should be made as to the costs of the applicants and the first respondent; from the Australian Government Solicitor seeking an order that the applicants pay the costs of the second respondents (the members of the Commission of Inquiry set up under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987); and a submission on behalf of Gunns seeking an order in respect of its costs against the applicants. The applicants and first respondent have also put in submissions in reply. Although the submission of the Australian Government Solicitor refers to "the applications for costs by all Respondents" (emphasis added), I have been informed that the third respondent (the Commonwealth of Australia) has expressly waived any right to seek an order in respect of its costs. The applicants are three incorporated bodies which appeared before the Commission to make submissions in support of 3. the view that no part of the areas with which the Commission was concerned were "definitely not qualifying areas" for the purposes of its interim report. When the Commission made a report identifying several such areas, the applicants commenced these proceedings under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for judicial review of its decision to do so. The proceedings were initially commenced against the Forestry Commission (of Tasmania) as first respondent and the members of the Commission as second respondents. Because of the comments of the High Court in The Queen v. The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 C.L.R. 13 at 17, 35-6, the application was amended to add the Commonwealth of Australia as third respondent. The active conduct of the argument upon the application took place between the applicants, on the one hand, and the Forestry Commission and_ the Commonwealth, on the other, though the Forestry Commission also raised objections to the viability of the application under the Judicial Review Act, the applicants being supported in their arguments to rebut those objections by the Commonwealth. As I noted in my reasons delivered 19 February 1988, the application originally included allegations of denial of natural justice which were not wholly withdrawn until the commencement of the hearing. It appears that the continuance of these allegations was regarded by the Commission as requiring it to brief senior and junior counsel to attend the hearing, notwithstanding what was said in Hardiman's case and that the Commonwealth was appearing also by senior and junior counsel to maintain the validity of the decision. The issues which the un 4. applicants ultimately sought to raise before me concerned alleged unlawful failure to take account of relevant issues and alleged unlawful taking account of irrelevant issues. I rejected the applicants" contentions. Most of the first morning of the hearing was occupied with submissions in limine, made on behalf of the first respondent, and disputed on behalf of the applicants and the third respondent, that the interim report of the Commission did not involve the making of a decision of an administrative character for the purposes of s.3(1) of the Judicial Review Act, and further that the applicants had no locus standi as persons aggrieved within s.5(1). But some time during that morning was not devoted to those issues, nor was the rest of the hearing. There is an obvious practical distinction between the expense involved in dealing with the matter in that way, and the expense of a completely separate hearing upon a preliminary objection. No significant time at all was occupied in connection with the notice of motion concerning Gunns, but the company was required to be present by its legal representative in order to meet the application launched against it. Section 43 of the Federal Court of Australia Act 1976 provides as follows: "(1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." The discretion conferred by this section has more than once been described as "unfettered". It is nevertheless a judicial discretion, to be exercised in a principled way - see Hughes v. Western Australian Cricket Association Inc. (1986) A.T.P.R. 48,134 at 48,136-7. In that judgment, Toohey J. cited the warning of Jacobs J. in Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at 16 against the too ready assumption that a party who has substantially failed may nevertheless recoup something in respect of costs by virtue of his success on a particular issue. Undoubtedly, in some cases he may; but in others he may not. In the case before him, Toohey J. proceeded on the basis that, though there should be some allowance against the successful party in respect of issues on which he failed, he "succeeded substantially in what he set out to achieve through his application". In the present case, I must have regard to the fact that the applicants launched proceedings against the first respondent, and also against the Commission (it thereafter being agreed that the Commonwealth of Australia should become a party to represent the Commission in argument), and the applicants wholly failed in their application. Concentrating for the moment upon the first respondent's right to an order for costs, I think it would be fair to say in favour of the applicants that the objections raised by that respondent which failed added the last half day to the time of the hearing. It does not necessarily follow that the costs orders otherwise appropriate should be affected. A party 6. against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment. In my judgment, the competing considerations will be reflected, and justice will be done, if the costs to be recovered by the first respondent are shorn of any amount attributable to the last day of the hearing, i.e. Wednesday 17 February 1988. For the applicants, it was urged that the first respondent need not have incurred costs in respect of the main argument since the Commonwealth was capably representing its cause. This proposition has a hollow ring. A respondent with a real interest in the issue an applicant chooses to contest is not disentitled from incurring the expense of appearing to defend the matter because someone else also appears. Nor could it be said that the interests of the Commonwealth and the Forestry Commission were bound to be identical, notwithstanding the concordance which in the event manifested itself between their submissions. In John Lysaght (Australia) Limited v. The Minister for Industry, Technology and Commerce (unreported, Wilcox J., 5 February 1988), each of two corporations was held entitled to an order for costs, following their intervention to present arguments, although the same viewpoint was pressed "very capably" on behalf of one of the original parties. The position must be a 7. fortiori where the party seeking a costs order is itself an original party, and indeed the first respondent sued by the application. Something was sought to be made of the fact that a major part of the first respondent's argument was presented (and capably presented) by junior counsel. I would be very sorry to see the Court lend any colour to a contention of that kind. There may have been many good reasons for the way in which the first respondent's case was presented, but whether there were or not, I do not think it is generally the Court's function to attempt to peer behind the curtain of professional privilege. It was enough for the Court in this case that it heard the argument put, and that argument prevailed. The applicants sought to derive from my earlier decision in Forestry Commission v. Helsham (unreported, 26 November 1987) a principle that, where two parties appear in the same general interest, costs should be awarded to the party having the leading role in the hearing. Since it was said that role had in the present case been taken by the Commonwealth, and since the Commonwealth was not seeking an order for costs, this could have resulted in no respondent obtaining an order for costs. My earlier decision is not authority for any such proposition. There, as I stated in my reasons, the present applicants "sought and were granted leave to intervene and be joined as respondents to support the Commission's decisions." I made no order in respect of their costs. In declining to make an order, I followed the course which was regarded as appropriate by the Full 8. Court in Harrigan v. Department of Health (1986) 72 A.L.R. 293 at 297. In Arnold (on behalf of Australians for Animals) v. Queensland (1987) 73 A.L.R. 607 at 621 Wilcox J. said: "(I)t ought not to be assumed that an intervener will have its costs in this Court, even if successful: see Harrigan v. Department of Health (1986) 72 A.L.R. 293." The views on this matter expressed in those cases find of course a fundamental justification in the proposition stated by Halsbury 4th ed. vol.37 para.226 that: "The general rule of practice is that the plaintiff is entitled to choose the person or persons as defendants against whom he wishes to pursue his claim for the relief or remedy he seeks... ." No submission was put on behalf of the applicants that their conservation objectives gave them any immunity from an order for costs. The problem of the impact of costs orders upon individuals pursuing questions by way of judicial review in what they see as the public interest, and not for personal gain, at least in the economic sense, was raised by Fox J. in Kent v. Cavanagh, Minister of State for Works (1973) 1 A.C.T.R. 43 at 55. That was a case concerned with objections to the construction of a tower on Black Mountain, Canberra. When the dispute reached the High Court (as Johnson v. Kent (1975) 132 C.L.R. 164), the High Court dismissed both an appeal and a cross-appeal "with costs", without any suggestion being raised that the costs should not follow the event. See the interesting discussion by Professor Campbell in Award of Costs on Applications for Judicial 9. Review 10 Sydney Law Review 20 at 28-32. In Arnold's case (supra, at 622), Wilcox J. referred to the appeal as having been brought "by a public interest group", but there, as appears from what his Honour said and from my own observations at 635, a number of reasons existed for declining to make an order in respect of costs in favour of the successful party. In de Smith's Judicial Review of Administration Action 4th ed. at 582-3, the general rule with regard to costs in judicial review Matters is stated to be that they follow the event "unless there are special circumstances that make it proper for an exception to be made". The well known incorporated bodies with which I am concerned have not asked for special consideration on the basis under discussion, and I do not think they are in a similar position to that of the individuals whose personal situation caused concern to Fox J. in Kent v. Cavanagh. If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded. The other applications for costs may be more shortly disposed of. Gunns properly incurred costs defending itself against the interlocutory relief sought to be obtained at quite short notice against it. Having dismissed the motion for an interlocutory injunction to restrain certain of its activities, I shall now make an order in its favour against the applicants in respect of its costs. 10. As far as the application by the members of the Commission is concerned, I am not persuaded there is any reason to make such an order. It was just because the members of the Commission were not expected to take an active part in the hearing that the Commonwealth was joined by amendment as an additional party to the application, so that it could appear and support the decision of the Commission. This course was in accordance both with the letter and the spirit of what was said in the High Court in Hardiman's case. If, in the circumstances, the Commonwealth had sought an order in respect of its costs, it is not easy to see on what basis it could have failed. That does not mean that the Commission, which could not have properly played a full part at the hearing, and did not attempt to do so, should now receive a costs order as if it had. It is true that allegations of denial of natural justice were not withdrawn until the commencement of the hearing, and that the Commission was represented at the hearing by senior and junior counsel. But, despite the fundamental significance of the principles of natural justice, they are not different in kind from other principles setting the legal requirements for a valid decision, so as to make what was said in Hardiman's case inapplicable where a denial of natural justice is alleged. In fact, Hardiman's case itself was a case in which a strong attack was made on the fairness and propriety of the procedures adopted by a tribunal. At page 16 of the report in 144 C.L.R., it appears that the argument presented by Mr. Costigan Q.C. included a specific submission that the action of the tribunal "offended . ll. natural justice". It was also asserted at 17 that "the tribunal had predetermined the issues it was required to investigate." Immediately after these submissions, Mason J. is reported as saying (also at 17): "It is unusual for the Tribunal in proceedings of this kind to present a substantive argument." In the circumstances, I shall make an order that the applicants pay the costs of the members of the Commission as submitting parties. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Dated: 3 May 1988. Counsel for the Applicants: Mr. J. Basten Solicitors for the Applicants: Henry Brookman Counsel for the lst Respondent: Mr. W. Bale, QC, Mr. A. Hemming, Ms B. Baker Solicitors for the lst Respondent: Director of Public Prosecutions Counsel for the 2nd Respondent: Mr. D. Graham, QC, Mr. J. Gobbo Solicitor for the 2nd Respondent: Australian Government Solicitor Counsel for the 3rd Respondent: Mr. S. Charles, OC Mr. C. Maxwell Solicitors for the 3rd Respondent: Australian Government Solicitor