EDO NSW case “epitomises” public interest litigation

ELAINE JOHNSON*

The Land and Environment Court has found that a case brought by EDO NSW on behalf of the Fullerton Cove Residents Action Group to protect the environment “epitomises the very concept of litigation properly brought in the public interest.” 

The Court ordered that, even though they lost the case, the residents should not have to pay the legal costs of the Department of Trade & Investment. The Court also ordered the Department to pay the legal costs of the residents group in disputing the costs of the court case.

What was the case about?
The residents group had challenged an approval of a CSG pilot project located on a floodplain, adjacent to an internationally-listed wetland, with wells that will continuously extract gas and water from depths of 800-900 meters for at least 12 months.

The residents went to Court because they were concerned that there had been no groundwater assessment, and a full Environmental Impact Statement should have been prepared to assess impacts on biodiversity and groundwater.

In March this year, the Court dismissed the residents group’s case, finding that the groundwater and biodiversity assessments met the standards set by our planning laws. After judgment, the Department pursued the residents for its legal costs. The CSG company, Dart Energy, did not.

What did the Court say about costs?
The Court ordered that because the residents group’s case was genuine public interest litigation, it should not have to pay the legal costs of the Department in responding to its appeal.

During the hearing on costs, the Department argued that the residents weren’t really concerned about the environment, they just wanted to stop the development at Fullerton Cove.

The Department extensively cross-examined both the residents group and EDO NSW about the residents’ motivations in bringing the case. However, according to the judge, the cross-examination “only served to reinforce the genuineness of Fullerton’s contention that it had commenced the litigation in the public interest in order to protect Fullerton Cove from what it perceived to be an inadequate assessment of the potential adverse consequences of coal seam gas exploration in that environmentally sensitive area.”

The Court also rejected the Department’s arguments that the case didn’t raise any new points of law and had little merit. Instead, the judge found that “not only did the litigation raise one or more novel issues of general importance, but that the litigation has contributed in a material way to the proper understanding, development and administration of the law.”

The Court also ordered that the Department pay the residents group’s own legal costs of having to dispute the costs of the litigation.

EDO NSW had written to the Department on a number of occasions, urging it to accept that the resident group’s case was public interest litigation. On each occasion, the Department declined the group’s offers.  The judge described the Department’s responses as, “for a model litigant, less than fulsome and unhelpful in the circumstances.”  The Department must now pay the residents group’s costs of arguing the point.

Why do we have special rules for public interest cases?
The Land and Environment Court has special rules in place which are designed to facilitate access to justice in exactly these kinds of cases. If a case is genuinely brought in the public interest, the person bringing the case should not be punished with a costs order simply because they lost.

If the law were to allow the general public to be frightened away from the Courts by the prospect of adverse costs orders worth tens of thousands of dollars, there would be little point in allowing those people access to justice in the first place.  As Justice Biscoe of the Land and Environment Court said recently in another public interest case (Friends of King Edward Park v Newcastle City Council):

“There is little point in the legislature opening the door to public participation in this way if the doorway is then blocked by a menacing costs hound which threatens to savage the responsible public interest litigant who dares to enter and loses.”

*Elaine Johnson is a Senior Solicitor at EDO NSW.

False choice for public interest environmental law

The Australian Legal Affairs Editor, Chris Merritt (Market model is worth copying for our legal centres, 11 October 2013) recently proposed a false choice between providing Legal Aid for less well-off Australians on criminal charges and ‘protecting trees’ under the law.

Many local communities around NSW have made it very clear that they see a strong public interest in legal protection for the environment and heritage – not only ‘trees’, but water quality, biodiversity including much-loved species like koalas, the integrity of farmland, human health, local amenity, indigenous culture and more.

These local communities also see that their concerns are not addressed by commercial law firms or models. Which is precisely why Australia and NSW have maintained a decades-old tradition of public funding for a range of community legal centres, including public interest environmental law ones.

This meets explicit community demand for independent expert legal advice, which on rare occasions includes courtroom litigation, and more subtly bolsters the overall administration of the legal system by filtering out cases that lack strong legal merit and a substantial public interest element.

Many community members also remain deeply concerned about the planning system and the impact of decisions by governments and public agencies on developments that affect them. Such people will be alarmed at The Australian’s proposition that a ‘market model’ should replace the current approach based on significant public funding.

EDO NSW Executive Director, Jeff Smith