Last week, Bell J dismissed an application for $90,000 security for costs against a small community group in long-running litigation that has now reached the High Court against the expansion of the New Acland Coal Mine on Queensland’s Darling Downs.
In a narrow sense, the decision is an unexceptional application of well-established principles for security for costs. Bell J dismissed the application because special leave to appeal had already been granted, ordering security for costs was likely to stifle the appeal, the appeal raises questions of importance and the applicant had delayed in applying for security.
More broadly, however, the decision speaks of the ongoing challenge of providing access to justice for the community in litigation where major power imbalances exist due to huge disparities in financial resources.
The company applying for security for costs was a major mining company with hundreds of millions of dollars in revenue annually and, in effect, unlimited resources for litigation to expand its mining operations. The $90,000 it sought was insignificant to it such that the real purpose was to shut down the appeal after the company earlier failed to wind-up the group in the Queensland Supreme Court. The community group opposed to the mine expansion, the appellant in the High Court, had very few financial resources in comparison.
Importantly for access to justice in similar cases brought by community groups, Bell J recognised considerations for security for costs are different for a small, voluntary, charitable organisation compared to cases involving shareholders or creditors of an impecunious corporation who stand to gain financially by litigation prosecuted by the corporation.
These issues have long bedeviled public interest litigation by community groups against large companies. In 1988, a mining company used security for costs to shut down litigation in the Queensland Supreme Court by a small community group trying to protect the Mt Etna Bat Caves at Rockhampton, after which the company immediately destroyed the caves.
The challenge that procedural and financial obstacles pose for community groups will not end with the recent High Court decision but they may be, perhaps, a little easier in the future.
Stephen Keim SC
26 August 2020