Supreme Court New South Wales Medium Neutral Citation: Snowy River Alliance Inc v Water Administration Ministerial Corporation (No 2) [2011] NSWSC 1132 Hearing dates: On written submissions Decision date: 22 September 2011 Jurisdiction: Common Law - Administrative Law Before: Hislop J Decision: Each party to bear its costs of the summons filed on 23 July 2010. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Minister for Planning v Walker (No 2) [2008] NSWCA 334 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Category: Costs Parties: Snowy River Alliance Inc (Plaintiff) Water Administration Ministerial Corporation (1st Defendant) Snowy Hydro Limited (2nd Defendant) Representation: K. Ruddock (Plaintiff) C. Norton (1st Defendant) I. Pike (2nd Defendant) The Environmental Defender's Office (Plaintiff) NSW Office of Water (1st Defendant) Mallesons Stephen Jaques (2nd Defendant) File Number(s): 2010/245123 Judgment Introduction 1The plaintiff is an incorporated association and is an active conservation group. It sought administrative law relief against the defendants by summons filed on 23 July 2010. The defendants opposed the plaintiff's application. The application was unsuccessful and the summons was dismissed. The issues arising in the proceedings are detailed in the primary judgment. 2At the request of the parties the costs of the summons were reserved. Written submissions concerning costs have been received from each of the parties. 3The defendants each sought an order that their costs be paid by the plaintiff. They relied upon the general rule that costs should follow the event ("the usual order")- s 98(1) of the Civil Procedure Act, UCPR 42.1. 4The plaintiff submitted "some other order should be made" namely each party should bear its own costs - UCPR 42.1. It contended such an order was appropriate as the proceedings had been brought in the public interest. Principles 5The award of costs involves the exercise of a broad judicial discretion. The discretion must be exercised in a principled manner. 6An order that each party bear its own costs rather than the usual order, may be appropriate where (i) the proceedings can be characterised as brought in the public interest; (ii) (generally) there is something more than such characterisation to justify the order sought; and (iii) the considerations in favour of "some other order" are not outweighed by countervailing considerations. - Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280. 7In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365, Lloyd J identified five considerations relevant to the question of whether proceedings can properly be characterised as having been brought in the public interest. 8The considerations were: "(a) The public interest served by the litigation; (b) Whether that interest is confined to a relatively small number of people in the immediate vicinity of a development, or whether the interest is wide; (c) Whether the applicant sought to enforce public law obligations; (d) Whether the prime motivation of the litigation is to uphold the public interest and the rule of law; (e) Whether the applicant has no pecuniary interest in the outcome of the proceedings." 9In Minister for Planning v Walker (No 2) [2008] NSWCA 334 the Court of Appeal accepted and applied the considerations identified by Lloyd J. 10In Caroona Preston J (Chief Judge of the Land and Environment Court) observed that in an environmental context there was generally not only a public interest in environmental protection but also a public interest in social development (usually represented by local government authorities) and economic development (usually represented by developers), each seeking to uphold a different perception of the public interest. 11His Honour found the primary justification for a costs preference in respect of the public interest in environmental protection lay in reducing the effect of the inequality of resources as between representatives of the various public interests and the need to ensure access to justice for those representing the public interest in environmental protection [21]-[35]. 12His Honour concluded: "[36] Hence, one justification for departure from the usual costs rule in litigation brought by citizens seeking to enforce public law to ensure environmental protection is to provide access to justice for these citizens and to ensure this aspect of the public interest is represented in the courts. This justification makes it reasonable for a court to examine the litigation concerned to ascertain whether it can be characterised as having been brought for the relevant, unrepresented aspect of the public interest that provides the justification for departure from the usual costs rule. It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reason of costs acting as a barrier to access to justice." 13In Caroona Preston J identified a number of factors relevant to the requirement of "something more". They included (at [60]): "(a) the litigation raises one or more novel issues of general importance... (b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law... (c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance... (d) the litigation affects a significant section of the public... (e) there was no financial gain for the applicant in bringing the proceedings..." 14His Honour also identified a number of countervailing considerations which included (at [61]): "(a) the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation... (b) where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation... (c) the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation... (d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications... (e) the applicant 'unreasonably pursues or persists with points which have no merit'...or issues that were not 'eminently arguable'... (f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation..." 15As is apparent, there is considerable overlap between the factors identified by Lloyd J and Preston J and not all factors must be present. Determination 16The defendants submitted the proceedings should not be categorised as having been brought in the public interest, there was no warrant to justify the order sought by the plaintiff and there were considerations militating against such an order. In particular the plaintiff had failed on all issues raised by it. The usual order should be made. 17I do not agree with the defendant's submissions for the following reasons: (a) it was common ground that the scheme set up by the legislature was unique and had not been the subject of prior judicial consideration; (b) the issues were novel and of importance. They were reasonably arguable. The argument for the plaintiff was presented competently and with appropriate despatch. There was no impropriety or unreasonableness in the conduct of the proceedings; (c) I accept the Snowy River has iconic status and that public interest in it extends well beyond its geographical location; (d) the plaintiff raised issues concerning the public obligations of the defendants. Although it was not conceded, I would infer the plaintiff (and those behind it) had nothing to gain from the proceedings other than seeking to uphold the law as they understood it to be. There was no evidence of financial gain to the plaintiff in bringing the proceedings. The chairperson of the plaintiff deposed that the plaintiff did not stand to benefit financially or otherwise from bringing these proceedings nor did any members of the plaintiff stand to gain any material benefit from the relief sought in the summons; (e) this is the type of case where the preferential order which is sought is appropriate if access to justice is not to be unnecessarily inhibited by concern in respect of potential adverse costs orders. 18In all of the circumstances, in my opinion, the proper exercise of discretion is to order that each party bear its own costs of the summons. Order 19I make the following order: Each party is to bear its costs of the summons filed on 23 July 2010. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2011