By Dan Star KC
Costs
Whether the court should make a maximum costs order
In Doctors for the Environment (Australia) Inc v National Offshore Petroleum Safety and Environment Management Authority [2025] FCA 598 (6 June 2025), the applicant commenced a proceeding for judicial review of a decision made by the National Offshore Petroleum Safety and Environment Management Authority (Authority) to accept an environmental plan, prepared and lodged by Woodside Energy Scarborough Pty Ltd (Woodside), pursuant to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (Regulations). The environmental plan related to activities to develop the Scarborough gas resource, off the coast of WA – a project with an estimated cost of US$12 billion.
Before the hearing of the judicial review proceeding, the applicant applied for an order pursuant to r40.51(1) of the Federal Court Rules 2011 (Cth) (Rules). The application requested that:
- the maximum costs as between party and party that may be recovered by the respondents collectively from the applicant be no higher than $80,000
- the maximum costs as between party and party that may be recovered by the applicant from the respondents collectively be no higher than $80,000.
The Court accepted the evidence of the applicant, an incorporated charity, that it did not have the capacity to pay more than $80,000 to satisfy an adverse costs order and that, if it was unsuccessful in obtaining the maximum costs order sought, it would be forced to abandon the judicial review proceeding (at [7]–[8], [22]). The Court also accepted Woodside’s evidence that the reasonable party/party recoverable costs of the proceeding would be at least $220,000, excluding GST (at [9]).
McElwaine J held that it was an appropriate case for the exercise of the discretion to make a maximum costs order, under r40.51 of the Rules, to facilitate access to justice in a case that raised important questions about the lawful exercise of statutory power (at [12]). The Court rejected Woodside’s submission that the applicant was acting in its private interests and in order to secure some benefit for it and its members (at [13]).
A further matter that supported the public interest consideration in the exercise of the discretion to make a maximum costs order was that the applicant extensively engaged with the Authority and with Woodside concerning the preparation of the environmental plan as a “relevant person” within the meaning of reg 25 of the Regulations (at [15]). In addition, the assessed party/party costs of Woodside of $220,000 was insignificant, both in the context of the estimated costs of the project and in the ability of Woodside to absorb the costs of the proceeding in excess of the maximum amount proposed by the applicant (at [17]).
The Court held there was “no warrant for reading in an implied limitation to the exercise of the power at r40.51 to the effect that it is, or is ordinarily limited to, less complex cases” (at [19]). Ultimately, the discretion is guided by what is an appropriate order in the interests of the administration of justice in the particular circumstances (at [20]).
The applicant sought the maximum costs order in the range of $20,000 to $80,000. McElwaine J said:
“I am unpersuaded it should be anything less than $80,000, because the applicant should be at some material financial risk in the event that it fails in the proceeding and suffers an adverse costs order” (at [28]).
Practice and Procedure
Judgment of the Full Court reserved – Application to reopen appeal to amend notice of appeal and to adduce further evidence to support additional ground
In Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 (16 May 2025), the Full Court determined the appellant’s interlocutory application to reopen his appeal after the hearing of appeal and months after judgment had been reserved, to amend his notice of appeal and to adduce further evidence to support additional grounds.
The substantive appeal arose from the appellant’s defamation proceeding. In 2018, the respondents published several articles about the activities of Australian special forces soldiers during the war in Afghanistan. The articles contained sensational allegations that war crimes had been committed by soldiers in the Special Air Service Regiment. Although he was not named in the articles, the appellant instituted proceedings claiming he had been defamed in them. The respondents contended that the defamatory imputations were substantially true and relied on the defence of contextual truth. Following a lengthy trial, while the primary judge found that the appellant was defamed in the articles, he also found that most of the imputations were substantially true and upheld the defence of contextual truth with respect to the rest. The trial judge found that the respondents had proved to the requisite standard the truth of the imputations that the appellant had committed or was complicit in murder on three separate occasions in 2009 and 2012. In an appeal that was heard but not yet decided, the appellant argued that those findings should not have been made.
The interlocutory application to reopen his appeal in order to file an amended notice of appeal and adduce further evidence rested on an audio recording that, since the hearing of the appeal, was made available to his solicitors. The recording was of a portion of a phone conversation between the second respondent, a journalist (Nick McKenzie), and a witness whose identity was the subject of suppression orders. The proposed amended notice of appeal would add a new ground that there has been a miscarriage of justice and denial of a fair trial to the appellant in the trial, by reason of the journalist’s misconduct “by improperly and unlawfully obtaining and retaining information concerning the Appellant’s legal strategy concerning the trial that was confidential and privileged to the Appellant” (at [30]).
As the evidence in question did not relate to any fact already in issue, the case was not governed by the usual approach, in which the proposed additional evidence would be admitted only if it was not available to the party concerned during the trial and its admission during the trial would have been likely to change the result (at [34]). Instead, the appellant sought to run a new point that turned on conduct during the proceeding itself, which was alleged to have resulted in a miscarriage of justice (at [35]). The Full Court cited High Court authority for the proposition that cases “where a trial has miscarried through misdirection [or] misreception of evidence” and cases of “surprise, malpractice or fraud” have been recognised as standing outside the general rule in relation to the introduction of “fresh evidence”.1
As to the discretion to permit reopening, the Full Court identified the following issues to be considered:
1. the prospects of success of the proposed new ground of appeal
2. whether the raising of the new point at this stage would cause unfairness to the respondents
3. whether there is a sufficient explanation for the alleged misconduct by Mr McKenzie not having been raised during the trial or earlier in the appeal process (at [38]).
The Full Court considered the concept of “miscarriage of justice” in the context of civil proceedings (at [40]–[43]). Perram, Katzmann and Kennett JJ stated:
“What we take from [the] authorities is that cases where some form of misconduct in the course of a trial is advanced as a reason why the judgment should be set aside involve consideration of whether, ‘in the interests of justice, the matter in question should be tried afresh’. The inquiry therefore does not end with the identification and proof of misconduct. Deciding where the ‘interests of justice’ lie is, as noted earlier, an evaluative exercise” (at [44]).
The Full Court explained that evaluation needs to take account of:
1. general considerations relating to the administration of justice (including the public interest in the finality of litigation)
2. the degree of culpability of the successful party
3. any lack of diligence on the part of the unsuccessful party
4. the extent of any likelihood that the result would have been different if the relevant misconduct had not occurred (at [44]).
Ultimately, in relation to the final factor, the correct approach is that a new trial should be ordered only if the Court were persuaded that Mr McKenzie engaged in “wilful misconduct” of the kind alleged. There is at least a real possibility that, absent that misconduct, the result in the Court below would have been different and, in all the circumstances, the misconduct is such that it is in the interests of justice for there to be a new trial (at [49]).
The Full Court held that the case, as encapsulated in the proposed amended notice of appeal, was not sufficient to establish that the judgment below should be set aside and a new trial ordered (at [50]–[61]). Further, even if proposed, new ground 17 articulated a case that was capable of causing the judgment below to be set aside, it failed at an evidentiary level for various reasons (at [82]–[110]).
In a separate judgment delivered on the same day, the Full Court dismissed the appellant’s appeal.
