17 July 2024
On 16 May 2024, the Full Court of the Federal Court of Australia dismissed the appeals in the Living Wonders cases, following the hearing in February. You can read more about the Full Court’s decision and the background to the case here.
Today, the Full Court delivered its judgment on the costs of the appeal proceedings and made no order as to costs. The effect of this decision is that each party bears its own costs, despite Environmental Justice Australia’s client, the Environment Council of Central Queensland (ECoCeQ), being unsuccessful in its appeals.
The judgement stated that the appeal proceedings brought by ECoCeQ concerned matters of high public importance, and the legal matters raised gave the case special significance.
ECoCeQ’s litigation is ongoing, as it awaits the outcome of its application for special leave to appeal the Full Court’s substantive decision to the High Court.
More detail: The costs judgment handed down by the Full Court
In its costs decision of 17 July 2024, all three members of the Full Court agreed, and formally ordered, that there should be no order as to the costs of the appeal proceedings. In making this order, the Court noted that a previous costs order made by Justice McElwaine in the context of first instance proceedings would remain in effect. You can read more about the first instance Federal Court proceedings here.
In summary, Chief Justice Mortimer found that based on the public interest in the outcome of the Living Wonders litigation, the interests of justice favoured the view that that there be no order as to costs in the appeal proceedings. Justice Colvin and Justice Horan agreed that the appropriate order in relation to the costs of the appeal proceedings was that each party should bear their own costs of the appeals.
Chief Justice Mortimer’s judgment
In summary, the parties’ arguments in relation to the costs of the appeal were as follows:
- ECoCeQ submitted that each party should bear its own costs of the appeals;
- The First Respondent, the Minister, submitted that ECoCeQ should pay 50% of the Minister’s costs of the appeals; and
- The Second Respondents, Narrabri Coal Operations Pty Ltd and MACH Energy Australia Pty Ltd, submitted that ECoCeQ should pay their costs of the appeals.
Chief Justice Mortimer determined that the appropriate costs order was that the parties should bear their own costs of the appeals. In making that determination, Chief Justice Mortimer made the following observations:
- The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was designed to protect Australia’s environment through the protection of matters of national environmental significance. In reflecting on this, Chief Justice Mortimer noted that “the environment cannot speak for itself; someone must speak for it” and stated that community organisations like ECoCeQ played an important role in advancing legal arguments which could clarify the operation of EPBC Act provisions that aim to protect the environment.
- In relation to the question of whether the Minister should be compensated for the expenses associated with the appeal proceedings, Chief Justice Mortimer noted that the Minister, as an officer of the Commonwealth exercising public power, did not have a private or personal interest in the outcome of the litigation – the Minister’s only interest was in the proper construction and operation of the relevant legislation scheme. Chief Justice Mortimer then went on to say that the litigation that had been brought by ECoCeQ, although unsuccessful, was of benefit to the Minister by affording the Minister some clarity about the nature and content of her statutory powers under the EPBC Act.
- Chief Justice Mortimer also noted that the costs of litigation under the EPBC Act can often be considerable but that the determination of these costs needed to be weighed against the advancement of public interest. Chief Justice Mortimer considered that making a costs order against an organisation like ECoCeQ, which operates as a not-for-profit environmental charity, had the potential to create a “chilling effect” for future environmental litigation, and went on to state that this was an important consideration for the Court to take into account when making a determination about costs in this type of litigation. Chief Justice Mortimer concluded that community organisations like ECoCeQ play a legitimate public interest role in ensuring that government bodies are held accountable in the exercise of their significant public powers and, in those circumstances, the interests of justice favoured an order that there be no order as to costs in relation to the appeal.
Justice Colvin and Justice Horan’s judgment
In their separate judgment, Justice Colvin and Justice Horan agreed with the Chief Justice and determined that the parties should each bear their own costs of the appeal.
In reaching that conclusion, they stated that the appeal proceedings brought by ECoCeQ concerned matters of high public importance and the legal matters raised gave the case special significance.
Media contact: Call or email Miki Perkins on (03) 8341 3110 or [email protected]
The Environment Council of Central Queensland is a small volunteer group acting as a voice for the environment in the region. Surround by reefs, rainforest, koalas, and a staggering number of coal mines, the group formed out of rapidly growing concern for the health and future of the local environment and the impact local developments are having on our planet’s climate.
Environmental Justice Australia is a national public interest legal organisation. For more than 30 years, EJA has used the law for safe climate, thriving nature, environmental justice and a radically better world.