FEDERAL COURT OF AUSTRALIA Tasmanian Conservation Trust Incorporated v Minister for Environment and Heritage [2004] FCA 508 TASMANIAN CONSERVATION TRUST INCORPORATED v MINISTER FOR THE ENVIRONMENT AND HERITAGE, RIVERS AND WATER SUPPLY COMMISSION AND THE STATE OF TASMANIA N2007 of 2003 JACOBSON J 16 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 2007 of 2003 BETWEEN: TASMANIAN CONSERVATION TRUST INCORPORATED APPLICANT AND: MINISTER FOR THE ENVIRONMENT AND HERITAGE FIRST RESPONDENT RIVERS AND WATER SUPPLY COMMISSION SECOND RESPONDENT THE STATE OF TASMANIA THIRD RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 16 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The motion to have the matter transferred to the Tasmanian registry of the Federal Court of Australia be dismissed. 2. the second respondent and third respondent pay the applicant's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 2007 of 2003 BETWEEN: TASMANIAN CONSERVATION TRUST INCORPORATED APPLICANT AND: MINISTER FOR THE ENVIRONMENT AND HERITAGE FIRST RESPONDENT RIVERS AND WATER SUPPLY COMMISSION SECOND RESPONDENT THE STATE OF TASMANIA THIRD RESPONDENT JUDGE: JACOBSON J DATE: 16 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is a motion brought by the second and third respondents for a change of venue of the proceedings under section 48 of the Federal Court Act. The motion also calls in aid the provisions of Order 10 rule 1(2)(f). The second and third respondents seek to change the venue from Sydney to Hobart. 2 The motion is opposed by the applicant. The first respondent neither supports nor opposes the transfer of the proceedings to Tasmania. 3 The principle proceedings seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 of a decision of the Minister made on 18 September 2003 to approve the construction and operation of the Meander Dam in the Meander Valley in Tasmania. The application is one which may be described as a conventional application for judicial review. The applicant claims to be aggrieved by the decision and contends that the making of the decision was an improper exercise of the power conferred by the enactment. It is unnecessary to say anything further about the application. 4 The applicant fulfils the role of Tasmania's peak conservation group. It is incorporated under the Associations Incorporation Act 1964 (Tas) and campaigns for the conservation of flora, fauna and other natural features of Tasmania. 5 The grounds on which the second and third respondents seek to have the proceedings transferred to Tasmania are set out in an affidavit of Timothy James Ellis SC, who is the Director of Public Prosecutions for the State of Tasmania. The essence of the grounds put by Mr Ellis is that the proceeding has aroused considerable interest in Tasmania because it concerns a proposal to undertake major construction. This proposal and the issue generally has been one which has been a matter of some interest in Tasmania for a period of approximately 25 years. 6 Mr Ellis relies principally upon the fact that the various Tasmanian media outlets have stated that they will attend the hearing in Tasmania if it is conducted there and that they will be able to give it full media coverage. Moreover, he points to the fact that members of the public in Tasmania will be able to attend the proceedings and that this is likely to increase public confidence in the proceedings. 7 Mr Ellis deposes to the possibility of the need for a view of the Meander Dam site and also to the possibility that there will be expert evidence to the effect that the construction of the dam does not threaten the species of heath known as Epacris exserta, as the species have been mistakenly identified as being under threat. 8 Although, as I have said the first respondent submits to the order of the court on the motion, an affidavit has been filed by the first respondent, which discloses that the issue is under further consideration because there has been a request to revoke conditions attaching to the approval of the dam and this may have some effect on the question of whether the species are, in fact, under threat. 9 Against this, the applicant's evidence discloses that the applicant is a voluntary non-profit organisation and it has chosen a legal team of its own choice. The solicitors for the applicant do not have an office in Tasmania and counsel have been retained on terms which are favourable to the applicant. Initially the legal team was retained on a pro bono basis but subsequently they agreed to a conditional costs arrangement under which the applicant's obligation to pay counsel's fees is contingent upon the successful outcome of the proceedings. 10 The affidavit of Ms Nadj discloses that, if the proceedings are to be transferred to Tasmania, it will be necessary either for the applicant to pay the disbursements of the legal team or alternatively, for the applicant to retain a new legal team. That, of course, would not be in the interests of the applicant because the existing team has already done considerable work on the matter and counsel and solicitors are experienced in this area of law and their services have been obtained on favourable terms. 11 Ms Nadj's affidavit did not set out in any particular detail the applicant's financial position but evidence has been tendered this morning which establishes that the applicant has substantial net assets in the order of $237,000 and that it owns a parcel of land on Bruny Island, which is shown in the accounts of 30 June 2003, at a value of $42,000. 12 The accounts of the applicant disclose that the applicant's gross income for the year ended 30 June 2003 was in the order of $207,000 but the operating surplus of the applicant for the same year was only $10,000. Most of the expenses were comprised in wages and the other items referred to in Ms Nadj's affidavit. 13 There was no dispute as to the principles which apply to an application such as the present. In National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162, the Full Court (Bowen CJ, Woodward and Lockhart JJ) said that: The power conferred on the Court or a judge under s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. 14 Their Honours observed that the power conferred by section 48 recognises the national character of the court. The various factors, which are raised on an application must be considered and weight is to be given to each of those factors by the court in coming to a decision as to whether it is appropriate to make an order. 15 As their Honours said at 162: Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of issues between them and the most efficient administration of the Court. 16 Their Honours pointed out that the test cannot and should not be defined more closely or precisely. 17 Counsel for the applicant referred me to a decision of Mandie J in Grimwade v Meagher [1995] VR 446 at 452 in which his Honour observed that the test to be applied in cases such as this is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice require that counsel be prevented from acting in the proceedings, giving due weight to the public interest, that a litigant should not be deprived of his or her choice of counsel without good cause. 18 The second and third respondents accept that the choice of venue by the applicant was not capricious. However, the second and third respondents point in particular to the desirability of the most open access to the hearing as would be possible. They say that if the proceedings are transferred to Tasmania, that public interest will be best served because it will enable members of the public to attend the hearing and also it will enable the media to give full coverage to the hearing of the application. The evidence filed discloses that there is considerable media interest in the issue and in the proceedings. The evidence also discloses that if the hearing were to take place in Sydney, the Tasmanian media would give the hearing of the proceedings only the most perfunctory coverage. 19 The second and third respondents also point to the fact that there is likely to be minimal cost to the applicant if the proceedings are heard in Tasmania because the hearing would only occupy one day. Accordingly, all that will be required in way of expenditure by the applicant is the cost of airfares to Tasmania and one night's accommodation. 20 It does however, seem to me that in exercising my discretion, some sound reason needs to be given to support an application such as the present. It does not seem to me that, on the present state of the proceedings, there would likely to be the need for a view or for expert evidence to be filed. The application is a conventional application for judicial review, which will be determined upon the basis of the documentary material which was before the Minister when the decision was made. 21 The decision of Mandie J, to which I have referred above, is authority for the proposition that the applicant should not lightly be deprived of the opportunity to have its Sydney based legal team remain intact. I think this factor is of significance in the present proceedings where the case is likely to occupy only one days hearing. This is not a case where witnesses will give oral evidence and be cross-examined. It does not seem to me to be the sort of case which would be likely to be attended by many members of the public. It does seem to me to be the sort of case which could be adequately covered by the media, given the very narrow compass of the issues which will be dealt with at the final hearing of the application for judicial review. 22 In the end, I have come to the view that although the principle of open justice and accessibility is an important one, it would not promote that interest to have the court sit in Hobart rather than in Sydney upon the basis of the material which has been put before me this morning. 23 If it does become apparent at some later stage that evidence will need to be taken in addition to the documentary material and if it becomes essential to have a view, then it will of course be open to the second and third respondents to renew the application. However, for the reasons which I have given, the orders that I propose to make today are that the motion be dismissed. 24 I will order that the second and third respondents pay the costs of the motion. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 27 April 2004 Counsel for the Applicant: R Lancaster Solicitor for the Applicant: Gadens Lawyers Counsel for the First Respondent: P J Hanks SC Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second and Third Respondents: P Griffin Counsel for the Second and Third Respondents: Crown Solicitor's Office Date of Hearing: 16 April 2004 Date of Judgment: 16 April 2004