Over the past two decades the environmental movement in Australia has utilised the legal system to prevent, or at least make life difficult for developers, miners, forestry companies and the like. But, as one group found out last Friday, using the courts can be a very risky venture, particularly if you lose. The prospect of members of the group having to fork out hundreds of thousands of dollars in costs to the winning party is a real one, and there is no guarantee that a court will allow you to avoid paying them by arguing that you are bringing the case in the “public interest”.

Lawyers for Forests, a group established by a group of young Melbourne lawyers in 2001, is today facing the prospect of having to find some serious money to pay the costs of the Australian government and Gunns, after a Federal Court ruling last Friday.

Lawyers for Forests challenged federal Environment Minister Peter Garrett and Gunns over the approval of a proposed pulp mill in the northern Tasmania. The case was heard by Justice Tracey over two days in June last year, and Garrett and Gunns were represented by not inexpensive senior and junior counsel and solicitors. On April 9 this year Justice Tracey ruled that the Lawyers for Forests challenge had failed.

Lawyers for Forests, facing a massive legal costs bill argued that the normal rule, which is that the winning party in litigation is entitled to recover their costs against the losing party, should not be applied in this case because Lawyers for Forests might go broke if it had to pay costs and the case involved matters of public interest.

Justice Tracey was not convinced of the public interest argument. Lawyers for Forests, he said, “has determined that, in pursuit of its objects and, in what it perceives to be the public interest, that the Minister’s approval of construction of the pulp mill should be challenged. It has a democratic and legal right to do so. These considerations do not, however, weigh strongly in favour of the making of the orders which it seeks.”

Lawyers for Forests did not have any legal authority to back up their point, according to Justice Tracey.

“LFF did not cite any authority for the proposition that a community organisation which prosecutes proceedings, in what it perceives to be the public interest and in which it does not stand to benefit financially, should not, generally, be ordered to pay costs, especially where there is a substantial ‘inequality of arms’ between the contending parties,” he wrote.

But what if Lawyers for Forests was to be cleaned out financially by having to pay a huge legal bill? It is not relevant, according to Justice Tracey, and nor was there any evidence put before the court about the matter. There “was no evidence before the Court as to LFF’s present financial position or as to its capacity to raise funds to meet any costs order which the Court might be minded to make”, and in “any event LFF’s capacity to meet a costs order is not a relevant consideration in determining whether an order should be made,” Justice Tracey noted.

Lawyers for Forests are appealing Justice Tracey’s dismissal of their challenge to the pulp mill approval process, but in the meantime their experience serves as a salutary reminder of the fact that the legal system is generally a two way street, no matter how noble litigants believe their cause to be.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey