In brief

The case of Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection & Anor (No 2) [2017] QSC 159, heard by the Supreme Court, concerned an application made by Adani Australia Coal Terminal Pty Ltd for payment of its legal costs following an unsuccessful application by a community based organisation, seeking judicial review of the decision made by the Department of Environment and Heritage Protection to grant an environmental authority for the expansion of Adani's Abbot Point coal terminal. 
 
The Court found in favour of Adani and, in doing so, considered the following:
  • whether the proceeding was "public interest litigation" which justified departure from the usual order as to costs; 
  • whether the case determined principles of general application or was a test case; and
  • the status of the Applicant for judicial review as a community based organisation and its capacity to pay the costs order. 

Court found that it was not enough to seek to characterise the proceeding as "public interest litigation" in order to avoid the operation of the usual order as to costs

The Applicant submitted that the case's subject matter concerned the protection of the Great Barrier Reef against potential impacts arising from the proposed coal terminal. As a consequence, the case was a matter of widespread public interest and importance. 
 
The Applicant also pointed to its status as a community based organisation, with no commercial interest, and that it had a genuine interest in the proper administration of the environmental rules and regulations. 
 
The Court rejected the Applicant's arguments and restated the following relevant principle in Sharples v Council of the Queensland Law Society Incorporated [2000] QSC 392
 
"[t]here is always a public interest in seeing that statutory obligations of a statutory body are fulfilled and that personal rights of any party affected by the performance of that statutory obligation are observed. By the nature of what is a decision to which the Act applies, every review application will involve an element of public interest … there will usually be some broader public interest involved in the particular application to justify a special costs order than the usual public interest which must be present in every application from the mere fact that the Act applies to the decision under review " (At [8]).
 
While the Court conceded that the case involved an element of public interest to the extent it concerned the due administration of the Environmental Protection Act 1994, that of itself was not sufficient to warrant the Court's departure from the general rule as to costs, being that costs follow the event. 

Court found that the case was neither a test case nor a case which determined principles of general application

The Applicant argued that the case involved "detailed and complex decisional rules" as to environmental protection. The Court dismissed this argument and held that it was clear from the primary judgment that the case did nothing more than turn on the plain reading of the environmental objective assessment.

Status of the applicant was irrelevant and there was nothing to suggest it was unaware of the likelihood of a costs order or unable to satisfy a costs order

The Court held that the community based status of the Applicant did not automatically confer immunity on it from an adverse costs order. Further, there was no evidence to suggest that the Applicant did not appreciate the likelihood of an adverse cost order being made against it. Finally, the Court found that there was nothing to suggest that the Applicant would be unable to satisfy the costs order. 
 
The Court was ultimately satisfied that there was no reason to depart from the usual order as to costs or that it reduce the quantum of costs. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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