Country
Australia
Sources
InforMEA
Tagging
Declaratory Relief, Injunctive Relief, Standing, Jurisdiction, Wildlife, Remedies, Liability, Permits, Wetlands, Taxation
Abstract
The question in this appeal to the Australian High Court was whether "...in declining to make an order that an unsuccessful Applicant in litigation pay the costs of the successful Respondent, a Court can properly rely, in whole or part on the fact that the proceedings may be characterised as public interest litigation...." The Appellant had initially sought a declaration that a planning decision taken by the Respondent was void and of no effect. His application was refused by the trial judge, who made no order as to costs. This decision was later overturned by a State Court of Appeal. The High Court reinstated the trial judge's decision on costs and made no order as to costs. The majority judges found that the trial judge was entitled to have regard to the "public interest nature" of proceedings when making an award of costs and that this may, in special circumstances, justify a departure from the usual order. What constitutes the "public interest" was left undefined. The majority's examination of the issue was mainly restricted to the legislative provisions which govern planning and environmental matters and costs. The High Court held that a judge is entitled to have regard to the public interest nature of a case when considering whether there should be any deviation from the normal rule of costs following the event. The fact that the litigation was taken in the public interest is not in itself sufficient to warrant a departure from the usual costs rule; "something more" was required: high level of public concern and controversy, that the challenge is arguable or that the proceeding concern novel or unusual statutory provisions that require interpretation.