Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Tasmanian Conservation Trust v Minister for Environment and Heritage [2004] FCA 883 TASMANIAN CONSERVATION TRUST INCORPORATED v MINISTER FOR THE ENVIRONMENT AND HERITAGE, RIVERS AND WATER SUPPLY COMMISSION AND THE STATE OF TASMANIA N 2007 of 2003 JACOBSON J 7 JULY 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: 7 JULY 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The applicant be granted leave to discontinue on the basis that the discontinuance is to be a defence to any proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or otherwise for the same or substantially the same cause of action as is the subject of these proceedings. 2. There be no order as to costs.
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: 7 JULY 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The applicant seeks leave to discontinue these proceedings under O22 r2(1)(d). The respondents consent to a discontinuance on terms that it be a defence to any proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or otherwise for the same or substantially the same cause of action as is the subject of these proceedings. 2 The only issue which arises on the application for leave to discontinue is the question of costs. It is agreed between the applicant and the first respondent that, as between those parties, there is to be no order as to costs. However, the second and third respondents seek an order that leave to discontinue be on terms that the applicant pay their costs of the proceedings. They rely on the well-known principle that the policy which underlies the rule relating to leave to discontinue is that the discontinuing party should be liable for the other party's costs unless the Court otherwise orders; FAIRA Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 9. 3 The applicant relies on the principle stated by McHugh J in Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 ("Lai Qin") that in cases where there has been no hearing on the merits, it may be appropriate for there to be no order as to costs if the parties have acted reasonably in commencing and defending the proceedings. His Honour stated the principle at 625 as follows:-
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