Thank you devil27 May 2014:  Brett Whiteley’s call for costs against TNC misunderstands the law

Last week, the Federal Court dismissed the Tarkine National Coalition’s (TNC) application to overturn the Commonwealth approval of Venture Minerals’ Riley Creek mine in the Tarkine.  Justice Tracey gave TNC seven days to file submissions explaining why it should not be required to pay costs.

In a letter obtained by The Advocate, Braddon Liberal MHR Brett Whiteley urged the Federal Environment Minister, Greg Hunt:

At a time when taxpayers are being called on to share the load and reduce our debt and deficit, the government needs to examine carefully the value of every dollar it spends.

I therefore insist the Commonwealth demand to the court that every last cent incurred by the taxpayer as a result of this frivolous and vexatious action be returned.

This request misunderstands both the meaning of frivolous and vexatious and the nature of the Commonwealth’s powers.

Mr Whiteley’s assertion that TNC’s action was frivolous and vexatious is not supported by the facts.  The Federal Court Rules 2011 and the Federal Court Act 1976 allow the Court to make a finding that proceedings are frivolous and vexatious. The Federal Court could have dismissed the proceedings on this basis but did not.  To our knowledge, neither Venture Minerals nor the Federal government argued that the application should be dismissed on these grounds.

In order to be considered frivolous and vexatious, an action must be completely devoid of merit and without hope of success.  The fact that the application was ultimately unsuccessful does not mean that it was frivolous or vexatious.  Indeed, Justice Tracey’s decision makes it clear that TNC’s application was considered seriously and involved important questions of law.

Furthermore, Mr Whiteley is wrong to suggest that the Minister can demand that the Court do anything.  The Commonwealth government may apply for costs, however the question of whether costs are awarded is at the discretion of the Court.  The separation of powers means that the Court has an inherent jurisdiction to make its findings and cannot be dictated to by parliament.

TNC have not yet decided whether they will appeal against the Federal Court’s decision.