If you sue the Government over a decision they have made on the basis that it is a matter of public interest will you need to pay the costs of the Government in defending the case if you lose?
It was considerations such as these that led the Hon. John Toohey, then a Justice of the High Court of Australia, writing extra-curially, to draw to attention the inescapable connection between cost rules and the maintenance of public interest proceedings.
“Relaxing the traditional requirements for standing may be of little significance unless other procedural reforms are made. Particularly is this so in the area of funding of environmental litigation and the awarding of costs. There is little point in opening the doors to the courts if litigants cannot afford to come in.
The general rule in litigation that “costs follow the event” is in point. The fear, if unsuccessful, of having to pay the costs of the other side (often a government instrumentality or wealthy private corporation), with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of cases to court.”
Courts have begun, in environmental litigation and elsewhere, to provide relief to those who justifiably bring proceedings in the public interest, even where they ultimately fail.
So long as you can show that the action you are initiating is in pursuit of and undertaken solely for worthy motives and that the challenge brought by you, the applicant, is legally arguable you may be able to have your case heard with confidence the Court would not order costs against you if you lose, a further implication is that each Barrister must accept a legally arguable case, regardless of whether his lawyer’s fees can be paid, this idea has long been an element in the Bar’s claim to independence and self-government.
You will need to show that there are “sufficient special circumstances” to justify a departure from the ordinary rule (winner takes all) as to costs. It must be pointed out that there is no absolute rule with respect to the exercise of a discretionary power (to award costs) conferred on the Court.
There have been orders (sometimes by a majority) based on the fact that there had been “genuine uncertainty about the interpretation of a document or statute” or because “the legal issue is novel and has consequences extending beyond the litigation” or where the “losing party may have had very good legal grounds for its position and conducted itself … in an entirely reasonable way”.
The issue of “Public Interest” is especially so where it could be shown that the proceedings brought “in the public interest‟ were ventured without any hope or expectation of private gain.
It is possible to request a protective costs order, prior to commencement of the trial to limit the costs but these were extremely rare, as Dyson J. pointed out in 1998 in the Child Poverty Action.
In the 1990’s there were changes in court rules to permit protective costs orders to be made, this has extended to litigation against Corporations as well, for instance in 2008, in Corcoran v Virgin Blue Airlines Pty Ltd a protective cost order was granted, but they have remained very unusual in Australia.
The onus lies on the losing party to establish a basis for any departure from the usual rule. Only in an exceptional case would a successful party both be deprived of costs and also ordered to pay the opponent’s costs.
In some Australian jurisdictions, legislation or court rules encourage courts to take public interest considerations into account in exercising their discretion as to costs.
Justice Kirby in Oshlack said :
“a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration. Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant.”
Since Oshlack the Courts have been even willing to give a costs order where not only did the Complainant NOT have to pay the Governments costs, but despite losing the case, the Government was still ordered to pay the complainants costs.
The Court in reaching this order that the Minister should bear the costs of the plaintiff found it
“reasonably necessary for the determination of the public interest questions”.
If your case is of very general importance, for instance insofar as the validity of a Section of an Act is concerned, not only should the Minister not have the costs of [the questions relevant to the validity of the Section of the Act], the Minister should bear the costs of the plaintiff reasonably necessary for the determination of [those questions].
This trend has continued in genuine public interest cases such as Ruddock which concerned the costs of applications for writs of habeus corpus filed on behalf of ‘rescuees’, who had been held on a foreign vessel directed by the Australian Government not to enter Australian territorial waters.
A solicitor and a civil liberties organisation, acting pro bono, had filed applications against the Commonwealth claiming that the rescuees were being unlawfully detained.
Although he lost the case the Court once more found it was in the public interest stating :
“This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth’s actions.
The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist….Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J”.
In conclusion there have been a number of public interest cases that the courts have recognised the value to society and the general community such as the Flying Fox Case, The Natham Dam Case, The Japanese Whaling Case, Paradise Dam Case, and the Gunns Pulp Mill case to name a few where the Courts have ruled favourably in terms of costs orders.
The Key for a public Interest proceeding seems to be that there is a genuine cause of action, which is legally arguable without personal interests at stake or expectation of gain and of high public importance.
To apply this now to a current theme, would the issue of medical conscription (as in no Jab, no Pay/Play) be a valid cause of action in the public interest that is legally arguable? The answer would be arguably yes it would apply, more so if proceedings were a class action to avoid possible argument of personal gain involved with individuals taking this action to contribute to the proper understanding of the law.
 DECONSTRUCTING THE LAW‟S HOSTILITY TO PUBLIC INTEREST LITIGATION by The Hon. Michael Kirby AC CMG, Law Quarterly Review, 2011.
 Address to international conference quoted in Oshlack (1994) 82 L.G.E.R.A. 236 and in Australian Law Reform Commission, Costs-shifting – Who Pays For Litigation? (A.L.R.C. 75, 1995) [13.9].
 G. Cazelet, “Unresolved Issues: Costs in Public Interest Litigation in Australia” (2010) 29 C.J.Q. 109 at 123.
 Oshlack v Richmond River Council (1994) 82 L.G.E.R.A. 236 at 246, per Stein J; 66 Oshlack v Richmond River Council (1998) 193 C.L.R. 22.
 Legal Ethics: A Comparative Study By Geoffrey C. Hazard, Angelo Dondi pg. 108 Para 2.
 (1994) 82 L.G.E.R.A. 236 at 246.
 Richmond River Council v Oshlack (1996) 39 N.S.W.L.R. 622 (CA).
 Ruddock v Vadarlis [No.2] (2001) 115 F.C.R. 229 per Black C.J. and French J
 (2001) 115 F.C.R. 229 at 235. In September 2008, French J became the Chief Justice of the High Courtof Australia.
 (1998) 193 C.L.R. 72 at 124 -.
 The developments in the UK are described in Environment Defenders Office, Policy and Law Reform, Costing the Earth? The Case for Public Interest Costs Protection in Environmental Litigation (Melb. 2010), 17.
  F.C.A. 864.
 DECONSTRUCTING THE LAW‟S HOSTILITY TO PUBLIC INTEREST LITIGATION by The Hon. Michael Kirby AC CMG, Law Quarterly Review, 2011 Pg.28.
 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)  NSWSC 1111 at .
 Arian v Nguyen (2001) 33 MVR 37.
 Protective Costs Orders in Public Interest Litigation: Jurisprudence Review 2013, Justice Connect, October 2013
 Oshlack (1998) 193 CLR 72 at 124 .
 Bodruddaza (2007) 228 CLR 651 at 676  per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.
 Bodruddaza (2007) 228 CLR 651 at 675-676  per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.
 Liversidge v Anderson  AC 206 at 283.
 Bodruddaza (2007) 228 CLR 651 at 675-676  per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ
 Ruddock v Vardalis (No 2) (2001) 115 FCR 229 (Ruddock).
 Ruddock (2001) 115 FCR 229 at 242 .
 Flying foxes, dams and whales: Using federal environmental laws in the public interest by Dr Chris McGrath accessed here http://envlaw.com.au/wp-content/uploads/PIEL.pdf on 16/12/2015 at 4.57pm.
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