Save the Ridge Inc v Commonwealth of Australia [2004] FCA 1289

FEDERAL COURT OF AUSTRALIA

Save the Ridge Inc v Commonwealth of Australia [2004] FCA 1289 SAVE THE RIDGE INC v COMMONWEALTH OF AUSTRALIA & ANOR A 16 OF 2004 EMMETT J 16 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 16 OF 2004

BETWEEN: SAVE THE RIDGE INC

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 16 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion be dismissed. 2. The applicant on the motion to pay the costs of the respondents on the motion. Note: Settlement and entry of orders is dealt with in O 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 16 OF 2004

BETWEEN: SAVE THE RIDGE INC

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 16 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me an application for leave to appeal from orders made by Whitlam J on 8 September requiring the applicant in the proceeding to give security for costs of the respondents. The respondents are the Commonwealth of Australia and the Australian Capital Territory. The decision whether or not to order the provision of security for costs and the quantum of any such security involves the exercise of a discretion by the primary judge in a matter of practice and procedure. 2 It follows, therefore, that leave to appeal would ordinarily be granted only where the decision is attended by sufficient doubt to justify its being considered by a Full Court and where substantial injustice would result if leave were refused, supposing the decision to be wrong. In the substantive proceeding, the applicant, Save the Ridge Inc, seeks orders in effect restraining the carrying out of works in the Australian Capital Territory on the construction of an arterial road known as Gungahlin Drive Extension. 3 Save the Ridge Inc originally sought interlocutory relief. That was refused. However, a Full Court concluded that there was at least a serious question to be tried, but refused interlocutory relief on discretionary grounds. Gyles J made an order under O 29 of the Federal Court Rules, the effect of which is that two questions raised by the substantive proceeding are to be heard separately and prior to the determination of other issues in the proceeding. 4 The proceeding raises the effect of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Section 28(1) provides that: 'The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.' 5 The applicant, Save the Ridge Inc, sets out in its application its grounds in some detail. Specifically it alleges in par 3 that the National Capital Authority, an emanation of the Commonwealth, has taken within Australia activities causing the planning, construction and operation of the Gungahlin Drive Extension. 6 Five particulars are set out involving the preparation of proposed amendments to the National Capital Plan and the submission of those amendments to the relevant Minister pursuant to the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). Paragraph 7 of the amended application then refers to three executive acts being amendment 41 to the National Capital Plan, amendment 46 to the National Capital Plan and a series of works approvals purportedly granted by the National Capital Authority pursuant to s 12 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). 7 The questions to be determined separately are whether the activities identified in par 3 of the amended application constitute action for the purposes of s 28(1) and whether any of the activities identified in par 7 of the amended application constitutes an action for the purposes of s 28(1). Those questions are essentially legal questions and no complaint has been made about the making of an order under O 29, the effect of which is to defer the question of whether any such action, if it is action, has, will have or is likely to have a significant impact on the environment. That question would involve considerable evidence and hearing time, whereas the legal questions are capable of being resolved in a reasonably short time. 8 The proposed grounds of appeal from the orders of Whitlam J, assuming leave were granted, may be summarised as follows: (1) His Honour erred by treating an order for security for costs as necessarily flowing from a finding that the costs were unlikely to be paid and therefore, failed to exercise the discretion conferred and failed to consider relevant considerations as follows: (a) the urgency of the matter and the likely delay to the hearing which is fixed for 27 September; (b) the 'public interest' nature of the litigation; (c) the apparent intention of the Parliament that legitimate organisations concerned with the environment, such as Save the Ridge Inc should be able to sue to enforce the Environment Protection and Biodiversity Conservation Act 1999; (d) the extent of the risk that Save the Ridge Inc would be unable to meet the costs of the Commonwealth and of the Territory if ordered to do so. (2) His Honour erred by making findings as to the quantum of the likely costs. (3) His Honour erred by making findings as to the ability of Save the Ridge Inc to meet a costs order. 9 In essence the first ground is that his Honour, on a fair reading of his reasons for making the relevant orders, did no more than conclude that there was some likelihood that Save the Ridge Inc would not be able to meet an order for costs and failed to have regard to the considerations referred to. I do not consider that on a fair reading of his Honour's reasons that complaint is likely to be made out. His Honour referred specifically to the decision of Hely J in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 34 ASCR 673 at 678 to 681. Specifically his Honour referred to pp 679 and 680 dealing with legislation of the nature of the Environment Protection and Biodiversity Conservation Act 1999. 10 The proposition that has been advanced by Save the Ridge Inc is that where legislation, such as the Environment Protection and Biodiversity Conservation Act recognises that public interest bodies have standing to challenge decisions that might adversely affect the environment, courts should take that circumstance into account in deciding whether or not to require security for costs in a proceeding in which the moving party has no specific interest in the outcome, other than the interest of the community. 11 Thus Hely J observed at [35]: 'In the exercise of the discretion whether or not to order the provision of security, some weight is to be given to the legislative desire to provide an effective mechanism whereby the question of whether conduct contravenes the legislation that is relevant can be agitated before a court: Equity Access Ltd v Westpac Banking Corp (1989) ATPR 40-972 at 50,637. The public interest, however, is simply one of many factors to be weighed in the balance. The legislative context is different from that which was the subject of consideration by Branson J in Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 21–3 where the legislative scheme was such that legitimate organisations concerned with world heritage properties should be able to agitate issues arising under the World Heritage Properties Conservation Act 1983 (Cth) and where the defendant in the proceedings was the minister charged with the administration of that Act.' 12 Whitlam J observed that his attention was directed specifically to Div 14 and Div 16 of the Act. Thus s 475, which is within Div 14, provides for the commencement of proceedings by the Minister or an interested person. 13 Section 475(7) provides that: 'For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met: