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) [2011] FCAFC 84.

This decision on costs related to the appeal in Bat Advocacy Inc NSW v The Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (appeal decision), which was the subject of an article in the June edition of Public law report.

Background

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".

Judgment

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 noted:

  • 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 his decision,
  • 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 be discouraged".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.