Background
Environment Centre (NT) Inc commenced judicial-review proceedings challenging two decisions concerning a proposed action by Top End Pastoral Company Pty Ltd under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). It challenged the Minister’s delegate’s acceptance of the referral and the decision that the proposed action was not a controlled action.
The group sought an interlocutory injunction, but the Court dismissed that application in June 2026 and reserved its costs. The group later decided to discontinue its substantive proceeding after the impugned land clearing had been substantially completed. Top End sought its costs; the Minister did not seek costs.
The Court’s Holding
Moshinsky J ordered Environment Centre (NT) to pay Top End’s costs of the proceeding to date, including the reserved costs of the unsuccessful injunction application. The costs are to be fixed on a lump-sum basis. There was no order as to the Minister’s costs.
Rule 26.12(7) of the Federal Court Rules 2011 creates a presumptive entitlement to costs for a party facing a discontinued claim, absent a sufficient reason to depart from that result. The Court held that the completion of clearing was not an external or supervening event making the case futile: when the proceeding began, it was foreseeable and likely that clearing would proceed unless interim relief was obtained.
The Court accepted that the applicant’s charitable status, lack of private interest, and environmental-law purpose were relevant to costs discretion. But those considerations did not outweigh the usual rule, particularly because the unsuccessful injunction application likely accounted for most costs and the proceeding was principally directed to the particular administrative decisions rather than broader questions of public importance.
Key Takeaways
- A party discontinuing a Federal Court claim will ordinarily pay the other parties’ costs.
- Foreseeable consequences of losing interim relief are not necessarily a supervening event justifying no costs order.
- Public-interest and charitable environmental litigation may inform costs discretion, but does not by itself displace the ordinary costs consequence.
Why It Matters
The decision underscores the financial exposure faced by public-interest litigants who commence urgent environmental judicial-review proceedings but cannot obtain interim relief. If the challenged activity is likely to be completed before final hearing absent an injunction, later discontinuance will not ordinarily avoid an adverse costs order.
For respondents, the ruling confirms that an unsuccessful interlocutory injunction followed by discontinuance can support recovery of the proceeding’s costs, including reserved interlocutory costs.