On 7 July 2011, the Full Federal Court gave its decision
on costs in Bat Advocacy NSW Inc v Minister for
Environment Protection, Heritage and the Arts (No 2)  FCAFC
This decision on costs related to the appeal in Bat Advocacy
Inc NSW v The Minister for Environment Protection, Heritage and the
Arts  FCAFC 59 (appeal decision), which was the subject
of an article in the June edition of Public law
In the appeal decision, the Full Federal Court had dismissed an
action brought by Bat Advocacy NSW Inc (the appellant). The
appellant had sought judicial review of a decision made by the
Minister for Environment Protection, Heritage and the Arts (the
Minister) to approve the Royal Botanic Gardens and Domain Trust
(the Trust) taking action for the relocation of a colony of
grey-headed flying-foxes from the Royal Botanic Gardens (Gardens)
in Sydney. The appellant claimed that the Minister's decision
was an improper exercise of power in that the Minister failed to
take into account a relevant consideration, namely, the impact that
the removal of the colony from the Gardens would have on the
flying-foxes as a species. Flying-foxes are a listed threatened
species in the vulnerable category under the Environment Protection
and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).
In the appeal decision, the appellant had foreshadowed seeking
an order that it not be required to pay the costs of the
respondents for the appeal on the basis that the appeal was
"public interest litigation".
The Court ruledthe appellant must pay the costs of the
respondents as the appellant had failed to make out a basis for a
special costs order.
The appellant had submitted it should not be required to pay the
respondents' costs of the appeal on the basis that the issue
surrounding the proposed dispersal of the flyingfoxes from the
Gardens was a matter of "broad public concern".
Alternatively, the appellant had submitted the Court should
exercise its discretion to award the respondents only a limited
proportion of their costs.
Notwithstanding its submission, the appellant had accepted that
the mere categorisation of litigation as having been brought in the
public interest is, on its own, not sufficient to justify a
departure from the usual order that costs follow the event. The
Court stated there must be "special circumstances" to
justify the Court's exercise of a discretion not to make the
usual costs order in favour of the successful party.
In rejecting the appellant's submissions, the Court
whilst the appellant was a nonprofit organisation with no
financial or personal interest in the outcome of the proceeding,
that did not mean the proceeding could be characterised as being in
the public interest
whilst the non-profit status of the appellant and the fact the
appellant had no financial interest in the outcome of the
proceedings were relevant considerations, those factors did not in
themselves constitute sufficient reason for departing from the
usual order as to costs
the appellant's primary complaint (ie, that the Minister
failed to take into account the impact that removal of the
flying-foxes would have on the species) involved matters of fact
that had no precedent value to future decisions regarding the EPBC
Act or the flying-foxes
no substantial new point of principle was determined in the
appeal as it turned largely on the application of well-known
judicial review principles to the reasons issued by the Minister
and the documentary material considered by the Minister in making
whilst the appeal was arguable "and well argued" by
the appellant, the case could not be viewed as having strong
prospects of success. The Court noted the decision at first
instance involved a carefully reasoned judgment, and held that if
every public interest body was able to run unconvincing appeals
free of any risk of adverse costs orders, it would be "a
significant burden on scarce public resources". The Court
stated that "as a matter of public policy, that course is to
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