Lucy McKernan, Co-Manager, Public Interest Law Scheme
In a recent speech to the Judicial Conference of Australia, the Commonwealth Attorney-General, the Hon. Robert McClelland MP, said that "[j]ustice should be available for everyone, not merely for those who can afford to participate in protracted litigation". This is none more so than in the case of public interest litigation.
PILCH has observed that many meritorious public interest matters are not ultimately pursued because of the risk of an adverse costs order. In this way, the costs regime acts as a disincentive to public interest litigation, particularly for marginalised and disadvantaged people. The problem is heightened where novel or untested issues arise, such that legal advisors are not able to advise with certainty on the likely outcome of litigation. This costs barrier also operates as a limitation on the right to access to, and equality before the courts, contained in sections 8 and 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
For example, PILCH is aware of a matter in which an elderly woman with an acquired brain injury had a very strong discrimination and administrative law claim in respect of a failure to provide adequate medical treatment. Proceedings were not instituted by the person's guardian, appointed under the Guardianship and Administration Act 1986, because the guardian was concerned about her exposure to costs, for which a guardian may be personally liable.
Courts in other jurisdictions have been prepared to make orders protecting public interest litigants against adverse costs orders. The orders are described as ‘protective costs orders' (PCOs) and may include orders that: a party will not be exposed to an order for costs if it loses at trial; the amount of costs that a party will be required to pay if it loses at trial will be capped at a certain amount; or there will be no order for costs whatever the outcome of the trial.
Unlike in the UK where the courts have developed substantial jurisprudence on PCOs, Australia does not have any specific public interest costs regime. In Oshlack v Richmond River Council the High Court indicated that, in exceptional cases, it may be appropriate to make no order as to costs. However, Justice Kirby was the only judge who made express reference to public interest considerations. We are not aware of any reported case in which a Victorian Court has made a PCO on the basis of public interest considerations. The Federal Court of Australia has made ‘no costs' orders, but these are very rare.
Given the obvious benefits of PCOs, and the lack of Australian jurisprudence in this regard, PILCH believes that the legislature should confirm the courts' jurisdiction to make PCOs and clarify what factors are relevant to the discretion to make such an order in public interest matters. Such intervention will significantly improve access to justice for marginalised and disadvantaged Victorians with meritorious public interest cases and is necessary to fulfil and promote the rights contained in sections 8 and 24 of the Charter.
Note: an extended version of this article will be published in a future edition of the Law Institute Journal