PILCH Matters December 2009
- Gary Cazalet, Law School, University of Melbourne, g.cazalet@unimelb.edu.au
Public interest cases that have merit and are reasonably arguable can usually be supported with legal assistance through organisations such as PILCH. Lawyers provide their skills and advice pro bono in the belief that the fundamental right to be heard also requires that litigants have the ability to be heard.
In Australia’s legal system, which is interwoven with complex statutes and judicial decisions, legal representation is often an essential element of access to justice. But the ability to obtain legal representation is only half the equation. In Australia, the prospect of being ordered to pay the defendant’s costs in the event of an unsuccessful claim is potentially an even more significant practical barrier to access to justice.
For more than 35 years judges, law reform commissions, commentators and litigants have argued that public interest litigation requires a different approach to costs. In 1973, Justice Fox said in Kent v Cavanagh 1 ACTR 43, 55, “It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at the risk of paying costs to the Government if they fail”. The Australian Law Reform Commission in its 1995 report took up this complaint. In Costs Shifting-who pays for litigation? the Commission concluded “…the significant benefits of public interest litigation mean it should not be impeded by the costs allocation rules.” Successive governments – both federal and state - have failed to heed calls for costs reform. The recent Commonwealth Access to Justice Task Force recommended that the Government provide the Federal Court with the discretion to make a public interest costs order. Asking governments to legislate to increase the ability of citizens to bring public interest litigation is like asking a dog to give up its bone. Governments are by far the most common defendant in public interest litigation. The present cost rules effectively provide governments with court-sanctioned protection against judicial scrutiny. It will be a measure of the Government’s commitment to access to justice if it acts on the Task Force’s recommendation.
In 1992, the Federal Court, recognising that the cost of litigation had placed access to justice beyond the reach of “persons of ordinary means”, reformed its rules to allow judges to specify the maximum costs that could be recovered on a party and party basis. This reform was not aimed at increasing access to justice for public interest litigants. Its focus instead was low level commercial litigation. However, a few lawyers have recognised that these reforms, set out in Order 62A of the Federal Court Rules, are not expressed as being limited to commercial cases and may be utilised in public interest cases. In Corcoran v Virgin Blue Airlines Pty Ltd, [2008] FCA 864, the Federal Court made the first protective costs order in a public interest case in more than 13 years. The Court found the application “very finely balanced”, concluding: “A successful litigant is entitled to the usual order for costs. The existence of a public interest is not, of itself, sufficient to alter that entitlement.”
In a more recent case Blue Mountains Conservation Society v Delta Electricity [2009] NSWLEC 150, the NSW Land and Environment Court made, what appears to be the first protective costs order under NSW Civil Procedure Rule 42.4. The Court ordered that the maximum costs that could be recovered by one party from another party would be limited to $20,000. Both the Federal Court and the Land and Environment Court have concluded that the maximum costs order must apply equally to each party. This is in contrast to the position in England. In England courts are prepared to recognise financial disparity between parties and shape their orders accordingly. The English approach recognises that the fundamental principle is access to justice, which includes consideration of the financial resources of both parties. In the Blue Mountain case, relative to the parties assets, a $20,000 cost order would equal some 1/7th of Blue Mountains’ assets; the proportional equivalent costs for Blue Mountains would be 98 cents.
Potential public interest litigants and their lawyers should be considering whether to apply for a protective costs order as part of their litigation planning. Courts in Australia, England and Canada have recognised that access to justice in public interest litigation requires a new approach to costs. It is now up to litigants to ask the courts.
A more extensive discussion of these issues is contained in Gary's forthcoming paper Unresolved Issues – Costs in Public Interest Litigation in Australia (2010) 29 Civil Justice Quarterly