Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources.

The case concerned a challenge to the minister’s approval under the EPBC Act of Gunns’ proposed pulp mill in Tasmania. The challenge failed both at first instance and on appeal to the Full Court, but the question of costs was reserved for separate determination. The Full Court of the Federal Court held unanimously that, notwithstanding their success both at first instance and on appeal, the minister and the relevant proponent, Gunns Limited (Gunns), should not be awarded their full costs on the customary ‘party-party’ basis. In relation to the minister’s costs, the Full Court had regard to the fact that, at least on appeal, ‘it was of general importance both to the minister and to the public that the law concerning the proper construction of the provisions of the EPBC Act with which the appeal was concerned should be clarified’. The court also noted that ‘the Wilderness Society was concerned, along with a large segment of the Australian community, to avoid harm to the Australian environment. The Wilderness Society was not seeking financial gain from the litigation; rather it appropriately sought to resolve a dispute, which had engaged the emotions of many, concerning the proper administration of the EPBC Act in the court rather than elsewhere…’ Accordingly, the minister was awarded only 70 per cent of his costs. In relation to Gunns’ costs, the court noted that, although Gunns was ‘a proper party to the proceedings’ (because it was Gunns’ proposed pulp mill that was the subject of the minister’s challenged decision), no conduct of Gunns was challenged by the Wilderness Society, the minister was the appropriate contradictor, Gunns had no reason to believe that the minister would not deploy appropriate legal resources to defend the appeal, and ‘Gunns played a larger role in the appeal than was necessary’. Accordingly, Gunns was awarded only 40 per cent of its costs.