What Price Democracy?

Blue Wedges Inc v Port of Melbourne Corporation [2005] VSC 305 (9 August 2005)(”Blue Wedges v Port of Melbourne Corporation’).

Blue Wedges Inc v Minister for the Environment, Heritage & the Arts (2008) 165 FCR 211 (”Blue Wedges v Minister for the Environment I’).

Blue Wedges Inc v Minister for the Environment, Heritage & the Arts (2008) 157 LGERA 428 (”Blue Wedges v Minister for the Environment II’).

Tollefson Chris Gilliland Darlene DeMarco Jerry , ‘Towards a Costs Jurisprudence in Public Interest Litigation’ (2004) 83 The Canadian Bar Review 475.

Justice Brian J Preston, ‘The Role of Public Interest Environmental Litigation’ (2006) 23 Environmental and Planning Law Journal 337, 337, referring to Sax Joseph , Defending the Environment: A Handbook for Citizen Action (1971), xviii.

Sax , above n 5.

Douglas Roger , ‘Uses of Standing Rules 1980–2006’ (2006) 14 Australian Journal of Administrative Law 22.

See, eg, the “open’ standing conferred by s 123 Environmental Planning and Assessment Act 1979 (NSW).

At Victorian Supreme Court level, Justice Mandie did not consider it necessary to determine the standing issue. See Blue Wedges v Port of Melbourne Corporation [2005] VSC 305 (9 August 2005) at [14].

Another potential barrier that was not an issue in Blue Wedges may be an order by the court for an applicant to provide security for costs; that is financial security for the costs that may be awarded against him/her if the case fails, s 56 Federal Court Act 1976.

See Wedges Blue Inc website <bluewedges.org>.

The Convention on Wetlands of International Importance, commonly referred to as the Ramsar Convention, was signed in the Iranian town of Ramsar in 1971.

EPBC Act, ss 16, 17B, 18, 18A, 20, 20A, 26, 27A.

Pursuant to Environment Effects Act 1978 (Vic), s 4(1).

Blue Wedges v Port of Melbourne Corporation [2005] VSC 305 at [10].

This phenomenon occurs through the application of discount rates to future values such as long term harm to the ecosystems of the bay.

Blue Wedges v Port of Melbourne Corporation [2005] VSC 305 at [12]/[13].

Blue Wedges v Minister for the Environment I (2008) 165 FCR 211, 226.

Ibid 225–227.

Blue Wedges v Minister for the Environment II (2008). Statement available at fedcourt.gov.au.

Blue Wedges v Minister for the Environment II (2008) 157 LGERA 428, 447/448, 454, 458–460.

Above n 20 at [9] and also Blue Wedges v Minister for the Environment II (2008) 157 LGERA 428, 467.

Kemp Ray , ‘Risk perception: The assessment of risks by experts and by lay people — a rational comparison?’ in Rück Bayerische (ed), Risk is a construct: Perceptions of risk perception (1993).

See Burgman Mark , “Who is an expert? Defining expertise for environmental risk analysis'’ forthcoming; copy on file with the authors.

Sax , above n 5.

Walters Brian , “Suing into Submission: Using Litigation to Quell Dissent’ (Paper presented at the Castan Centre for Human Rights Law, 9 August 2005), law.monash.edu.au/castancentre/events/2005/walters-paper.pdf at 5 November 2008.

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 35 (per CJ Gibbs).

Galanter Marc , ‘Why the “Haves” come out ahead: Speculations on the Limits of Social Change’ (1974) as cited in Bottomley Stephen Gunningham Neil Parker Stephen , Law in Context (1994), 65.

Walters , above n 26, 5.

s 69(2) of the Federal Court of Australia Act 1976.

Oshlack v Richmond City Council (1998) 193 CLR 72.

Blue Wedges v Minister for the Environment I (2008) 165 FCR 211, 227/228.

Oshlack v Richmond City Council (1998) 193 CLR 72, 80/81 and 91 per Gaudron Gummow JJ .

Stein Justice in the primary decision in the Land and Environment Court of New South Wales, Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.

Oshlack v Richmond City Council (1998) 193 CLR 72, 124 per Kirby J .

Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [11]–[12].

See, eg, the situation of Whitsunday Wildlife , a group that sought judicial review of the decision to allow a new coal mine to proceed. Ruddock Kirsty , ‘The Bowen Basin coal mines case’ in Bonyhady Tim Christoff Peter (eds), Climate Law in Australia (2008).

See Douglas , above n 7; in only 6 out of 32 standing cases, where information on cost orders were available and the plaintiffs were unsuccessful, no cost orders or cost orders only partly in favour of the defendants were made.

The Wilderness Society Inc v The Hon Malcolm Turnbull, Minister for the Environment and Water Resources and Gunns Limited [2007] FCA 1863 (30 Nov 2007), at [31] (”Pulp Mill Case’).

Oshlack v Richmond City Council (1998) 193 CLR 72, 80/81 per Gaudron Gummow JJ .

The Wilderness Society Inc v The Hon Malcolm Turnbull, Minister for the Environment and Water Resources and Gunns Limited (2008) 157 LGERA 413, 415/416. Gunns was found to have “played a larger role in the appeal than was necessary’ and should therefore have only limited redress for its costs.

Oshlack v Richmond City Council (1998) 193 CLR 72, 124 per Kirby J , citing further caselaw.

See eg Friends of Hinchinbrook v Minister for the Environment and ors (1998) 99 LGERA 140, 142.

Blue Wedges v Minister for the Environment, Heritage & the Arts [2008] FCA 1106 (15 July 2008), at [6] and [10].

Ibid [13].

Ibid [14].

Wallace Rick , ‘Garrett to pursue costs from anti-dredging group’ The Australian (Sydney), 17 July 2008, 9.

Gregory Peter , ‘Blue Wedges may pay costs’ The Age (Melbourne) 16 July 2008, 3.

Lucas Clay , ‘Counter-terrorism police want to speak to these people … who want a bay protection plan’, The Age (Melbourne) 17 January 2008, 5.

Edwards Kellie , “Costs and Public Interest Litigation After Oshlack v Richmond River Council’, (1999) 21 Sydney Law Review 680, 702.

Australian Law Reform Commission, Costs Shifting — Who pays for litigation? (1995) Report No 75, at 2.14–2.17.

Some provisions in state law require “public interest’ considerations, eg in cost review applications in Queensland, see Judicial Review Act 1991 (Qld), s 49 (2 b) and in a public interest cost order application in the Northern Territory, Local Court Rules (NT), s 38.10; for an overview of caselaw and policy initiatives in other Commonwealth jurisdictions see Tollefson, n 4.

Oshlack v Richmond City Council (1998) 193 CLR 72, 123 per Kirby J .

See, eg, Pulp Mill Case [2007] FCA 1863, (30 Nov 2007) at [31]; Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [17]–[19].