South Sister St. Marys, Tasmania

Forestry Tasmania Costs Application

rmpat rejects application

File NO: A8/05

J133/2006

Costs

Resource Management and Planning Appeal Tribunal

Between

Environmental Defenders Office
Obo J Weston and Others

Appellant

AND

Forestry Tasmania

Respondent

This was an application by the Respondent for an order that its costs for the application be paid by the Applicants

Submissions were made in writing without a hearing

DECISION

Background

1. In February 2005 Forestry Tasmania by its servants or agents commenced, what will for convenience be described as 'logging operation' in an area on the north-east coast of Tasmania. Specifically the logging operations commenced near St Marys in a State Forest coupe NI 114A. The coupe is within the Break O'Day municipality
2. Before commencing the logging operations Forestry Tasmania prepared, as it was required to do, a Forest Practices Plan PWJ0010. That Forest Practices Plan was certified under the Forest Practices Act 1985, prior to the logging operation commencing and it was registered in accordance with that Act.
3. Twelve people, most of whom resided in the general area surrounding the logging coupe, made application to the Resource Management and Planning Appeals Tribunal (the 'Tribunal') for temporary and final orders pursuant to Section 48 of the Environmental Management and Pollution Control Act, 1994.
4. In substance the Applicants sought orders which, if granted, would have had the effect of preventing Forestry Tasmania from carrying out any logging operations in the coupe. The Applicants said that the logging would unlawfully cause an environmental nuisance, that it was likely to cause material environmental harm and that Forestry Tasmania by logging was acting recklessly and with knowledge that material environmental harm might results (sic), all alleged breaches of various provisions of the Environmental Management and Pollution Control Act 1994.
5. By decision dated the 4th of March 2005 the Tribunal refused to make the temporary orders. The Applicants declined to offer any undertaking to make good any loss suffered by Forestry Tasmania or anyone else in the event that it should later be proved that the temporary order have been inappropriately granted. The Tribunal considered that this failure to provide any undertaking, similar to the common law undertaking in relation to damages when injunctive relief is sought from the court, was a significant and material consideration that militated against the grant of the orders sought.
6. The Tribunal issued a summons to Forestry Tasmania. Forestry Tasmania raised what it described as a threshold matter, that is to say, whether or not the application itself was competent. That issue was dealt with be a decision of the 18th of March 2005 as a consequence of which decision a number of the allegations made by the Applicants were 'identified as invalid'.

The Claims

7. The Applicants proceeded with the application for final orders claiming that Forestry Tasmania by carrying out the logging operations would contravene the Environmental Management and Pollution Control Act 1994 in four separate ways.

The first claim

8. The first claimed breach of the Environmental Management and Pollution Control Act 1994, was a breach of Section 53(2), an allegation that Forestry Tasmania would, by carrying out logging operations in the coupe, unlawfully cause an environmental nuisance. The substance of the allegations were that:
1. there would be an emission of soil and vibrations on or from the coupe;
2. that the emission of the soil and vibrations from the coupe would unlawfully cause environmental nuisance
3. the soil erosion would result because of:
4. 1. increases in the volume and velocity of surface water runoff: and
  2. changes in the direction of surface water runoff.
5. That the Applicant's water supplies would be contaminated as a result of that soil erosion:
6. There would be a significant decrease in water yields in catchment areas:
7. The impact (adverse) upon land stability will mean a significant increase and the potential for subsidence and landslips within the coupe itself and within the general vicinity of the coupe and the contamination and diminution of water supply and loss of land stability would adversely affect the Applicants' ability to use and enjoy their property and that would be as a consequence of unreasonable interference for the enjoyment of the environment

The second claim

9. The second claim alleged a breach of Section 51(2) of the Environmental Management and Pollution Control Act 1994. It was said that the logging operation would cause material environmental harm by polluting the environment. In substance the pollution allegation was not significantly different from the allegation of unlawful causing, of environmental nuisance. There were additional allegations of locally adverse impacts upon the quality, quantity and availability of water from the catchment to the St Marys water supply and other allegations that the diminution and contamination of water would lead to downstream consumers including the Break O'Day Council having to do work to fix the problems.

The third claim

10. The third claim alleged a breach of Section 51(1) of the Environmental Management and Pollution Control Act 1994 that, in carrying out the logging operation, Forestry Tasmania would act recklessly and with the knowledge that material environmental harm might result. This was said to be a contravention of Section 51(1) of the Environmental Management and Pollution Control Act 1994. Once again the allegations were materially similar to those above and revolved around an assertion that the logging operation would lead to soil disturbance, emission of vibration and the like.

The fourth claim

11. The fourth and final claim alleged a breach of Section 52(2) of the Environmental Management and Pollution Control Act 1994. It was said that the logging operations would cause serious environmental harm by polluting the environment. Again the particulars provided in support of this claim raised nothing new and revolved around soil disturbance, emission of vibration and problems in relation to water flow.

The course of proceedings

12. The proceedings before the Tribunal proceeded in the normal manner. A directions hearing was held and orders were made in relation to the exchange of proofs.
13. Eighteen proofs of evidence were provided in support of the four allegations. Some of the proofs were from experts in various areas such as geology, engineering, hydrology, and property valuation and the like. Some were from some of the Applicants; others were from other lay people.
14. As the matter progressed the Applicants abandoned several of their grounds of the application. In its final form the matter that the Applicants asked the Tribunal to determine was only a claim that there had been a breach of Section 53(2) of the Environmental Management and Pollution Control Act 1994. i.e. the "first claim". The other three claims were abandoned.
15. The matter was listed for hearing on Monday the 3rd of October 2005. By letter dated Friday the 30th of September 2005, that is the last working day prior to the hearing the Applicants advised the Tribunal that they wished to withdraw the application.
16. An application was subsequently made by Forestry Tasmania for an order pursuant Section 28 of the Resource Management and Planning Appeals Tribunal Act 19 that the Applicants pay the Respondent's costs of and incidental to the proceedings.
17. The application for costs is opposed.

The law

18. Section 28:
- "28. Costs
- 1. Each party to an appeal is to pay its own costs.
  2. However, the Appeal Tribunal may order a party to an appeal to pay all or part of the costs of another party to the appeal if the Appeal Tribunal is satisfied that it is fair and reasonable to do so.
  3. For the purposes of subsection (2), the Appeal Tribunal may take into account any of the following matters:
  4. 1. Whether the appeal appears to the Appeal Tribunal to have been instituted merely to delay or obstruct:
    2. Whether in the Appeal Tribunal's opinion a party has raised frivolous or vexatious issues;
    3. The relative merits of the claims made by each of the parties;
    4. Whether in the Appeal Tribunal's opinion a party has unnecessarily or unreasonably prolonged the appeal or increased the costs of it;
    5. Whether a party has failed to comply with a direction or order of the Appeal Tribunal without reasonable excuse;
    6. Whether a party has failed to comply with any relevant law or planning scheme;
    7. The nature, complexity and outcome of the appeal;
    8. The capacity of the parties to meet an order for costs;
    9. Any other matter the Appeal Tribunal considers relevant
19. It is clear that the proper approach to a determination of an application for costs under the Act starts with the proposition that costs do not follow the event and are to be borne by each party to an appeal
20. The Tribunal is empowered to depart from the general position if it thinks it is "fair and reasonable to do so".
21. Subsection (3) of Section 28 provides a list, non-exhaustive, of matters that the Tribunal may take into account for the purpose of subsection (2), that is to say decide whether it is satisfied that it is fair and reasonable to order a party to an appeal to pay all or part of the costs of another party to the appeal.
22. Forestry Tasmania submits that there are a number of reasons why the Applicants should pay their costs.
23. It is submitted that in accordance with Section 28(3)(a) that the issue "of whether the Applicants have instituted and maintained proceedings to obstruct the Respondent remains open". This submission is rejected. The subsection requires the Tribunal to be satisfied that the appeal was instituted for the sole purpose of obstructing. There is no basis upon which the Tribunal could be so satisfied, nor is one pointed to by Forestry Tasmania.
24. The Respondent submits that under Section 28(3)(i) costs should be awarded against the Applicant since "in the absence of a costs orders, the Respondent may be attacked with impunity by groups such as the Applicants". This submission is also rejected. As Brennan CJ said in Oshlak v. Richmond River Council (1998) HCA 11 at paragraph 1 "Costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party". Similarly, costs should not, in the view of the Tribunal, be awarded as a method of deterring other groups from exercising the right or entitlement t be involved in proceedings before the Tribunal. In the Tribunal's view this is not a relevant consideration and it is rejected. Indeed it is inconsistent with one of the stated objectives of the Resource Management and Planning System of Tasmania, contained in Schedule 1, 1(c) of the Act.
25. The Respondent submits that the Applicants "have unreasonably prolonged the appeal and have significantly increased the costs of that appeal". No reason is advanced as to why it is submitted that the Applicants conduct during the proceedings can be properly categorised as "unreasonably" prolonging it. The submission is rejected.
26. The final area that is canvassed by the Respondent is the issue of relative merits of the parties and the nature and complexity of the appeal. It is submitted that the outcome of the appeal is known, the application was not successful. The Respondent submits, in some detail, that the Applicants could never have hoped to have been successful. It is submitted that the case of the Applicants was one that was unlikely to succeed. The difficulty with this submission from the Tribunal's point of view, is as was said by Cox CJ in Gregg v. Northern Midlands Council (2004) TSSC 10 at paragraph 24 "Where proceedings are terminated before a decision has been made on the merits ... an adjudicator with power to award costs is deprived of much of the material to which regard is normally had." His Honour, the Chief Justice relied upon a passage of the judgement of McHugh J in re The Minister for Immigration and Ethnic Affairs ex parte Lai Quin (1997) 186 CLR 622. In the passage McHugh J said

"In most jurisdictions today, the power to award costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or otherwise on particularly issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor which usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in RV Gold Coast City Council; ex parte Raysun Pty Ltd (1971) QWN 13, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of roads and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in the South Easty Queensland Electricity Board v. Australian Telecommunications Commission unreported, Federal Court of Australia, 10 February 1989 where his Honour ordered the respondent to pay 80 per cent of the applicant's tax costs even though his Honour found that both parties had acted reasonably in respect of litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings. This approach has been adopted in a large number of cases." (at 624-625)

27. The Tribunal does not propose to embark upon a determination of whether and, if in what circumstances this action would have succeeded or not. To do so would offend the principle averted to by McHugh J in re The Minister for Immigration and Ethnic Affairs ex parte Lai Quin (Supra).
28. There is nothing, in the view of the Tribunal in the conduct of the Applicants in the proceedings that persuaded it that it would be appropriate to depart from the ordinary position as expressed under the Act that parties pay their own costs in proceedings before the Tribunal.
29. Accordingly the application for costs is dismissed.

Dated this 6th day of July, 2006

SJ Cooper
Chairman