MATTER : Application for a Writ of Prohibition against the Shire of Serpentine-Jarrahdale

Prerogative writ - Prohibition - Costs orders - Unsuccessful applicant not protected from costs orders on grounds of public interest - No ground for special order as to costs

Applicant ordered to pay the costs of the respondents to be taxed

1 JUDGMENT OF THE COURT: On 4 March this Court gave judgment upon an application for a Writ of Prohibition brought against the first respondent by an order nisi made on 26 October 1998 in respect of what was asserted to be a decision which it was anticipated the Shire would make to grant an extractive industries licence to the second respondent. Very shortly put, the contention was that by reason of a previously taken decision the Shire was precluded from granting the licence upon conditions which would route clay trucks to and from the proposed quarry along a road upon which the applicant's monastery is located. The applicant's contention was that by reason of its previous decision the Shire would be obliged to grant the licence in terms which fixed an alternative route for trucks using the quarry, which would take them past other premises, including those of Brookridge Investments Pty Ltd which, although not a respondent, was given leave to appear and present argument on the return of the order nisi. The application for the Writ was refused and the order nisi discharged.

2 These reasons are concerned with the applications made and arguments presented upon the question of the costs orders, if any, which should properly be made. On the discharge of the order nisi the first respondent merely sought its costs to be taxed in the ordinary way. The same form of order was proposed for Brookridge Investments Pty Ltd. For the second respondent, however, it was submitted that a special order as to costs should be made, removing the upper limit of the relevant item in the Scale fixed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 which has been in operation since 1 February 1997. In addition, a reasonable allowance for the preparation of affidavits for use at the hearing was sought.

3 The applicant opposed the making of any costs orders against it. It sought to categorise the application for prohibition as public interest litigation sufficient to cause the court in the exercise of its discretion as to costs not to follow the ordinary rule that a successful litigant should be awarded its costs. It submitted that each party to the proceedings should bear its own costs. In the event that submission was not accepted, the applicant opposed awards of costs in favour of the second respondent and Brookridge Investments Pty Ltd, describing both as "interveners" presenting arguments in support of that of the first respondent, to whom it was submitted they might reasonably have left the response to the application, although it was conceded that the second respondent and Brookridge Investments Pty Ltd might both be said to have an interest in the litigation.

4 It is convenient to deal first with the position of the second respondent and Brookridge Investments Pty Ltd. In Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 the High Court emphasised that in cases where an award of costs lies within the discretion of the court, the exercise of that discretion should be guided primarily by the consideration of the position of the successful litigant. As Mason CJ said at 542-3:

"...in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."

5 Unless some particular reason to take a contrary view emerges (eg in this case the asserted public interest character of the litigation), costs should follow the event. That is enough to determine the position of the second respondent, an admittedly interested party who had an argument to present, albeit an argument which had much in common with that of the first respondent. That such was the case in our opinion provides no reason to deprive the second respondent of an award of costs.

6 Brookridge Investments Pty Ltd is in our opinion in a precisely similar situation to the second respondent. It had a particular interest in the outcome of the proceedings and was granted leave to present its views on the return of the order nisi. That it was not strictly a party to the proceedings provides no reason to deprive it of its costs. The court's discretion to award or refuse costs is not one confined to making an order in favour of or against a party. The Supreme Court Act 1935 (WA) s 37(1) and the Rules of the Supreme Court O 66 r 1(1) provide the court with a discretion in respect of "the costs of and incidental to all proceedings" in the court. An award of costs in favour of Brookridge Investments Pty Ltd would be such an order.

7 The question then is whether there is any particular reason for the successful litigants, the two respondents and Brookridge Investments Pty Ltd to be deprived of their costs because the applicant asserts that it made the application for prohibition in the public interest, the applicant being categorised "as a public interest entity".

8 Such a ground for resisting an award of costs was considered by this Court in South-West Forests Defence Foundation (Inc) v Land & Forest Commissioner (No 2) (1995) 86 LGERA 382. The court there noted that "it has been suggested in a number of authorities that, where a party can legitimately claim to represent the public interest, rather than merely a private interest, this may justify a court's departure from the general rule as to costs in appropriate circumstances". It was suggested that such circumstances might include a case where important questions of general principle were raised for determination in the public interest. However, the court saw nothing of that character in the litigation before it and concluded that "it is likely to be a very rare case in which an unsuccessful appellant from an adverse decision below would escape an order for costs."

9 The matter was considered by the High Court in the context of legislation providing an unfettered discretion to the court in relation to an award of costs in Oshlack v Richmond River Council [1998] HCA 11; (1998) 72 ALJR 578. The court reaffirmed that the ordinary rule would always be that a successful defendant should be awarded its costs, but in the case before the court, the majority concluded that there were special circumstances derived from the public interest character of the litigation sufficient to warrant the trial Judge exercising his discretion to decline to award costs to the successful party. At 588 Gaudron and Gummow JJ were persuaded to that view by the fact that the unsuccessful party pursued the litigation to secure the observance of legislation enacted for the benefit of the public or a section of the public, for the preservation of endangered fauna, in circumstances where there was an identifiable public interest in the outcome of the litigation and no identifiable private interest in its success. In addition a significant factor was said to be the identification and resolution of important issues concerning the interpretation and future administration of the relevant statutory provisions. Kirby J expressed a similar view.

10 The identification of public interest litigation in that way demonstrates without the need for further debate why this litigation may not be said to bear such a character in a way which would justify the exercise of discretion in relation to costs so as to refuse awards to those successful in the litigation.

11 In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner. As McHugh J, with whom Brennan CJ agreed, in dissenting in Oshlack put it at [72]:

"If discretions concerning costs are to be exercised consistently and rationally, it is essential that the courts formulate principles and guidelines that can be applied with precision in most cases. If characterisation as 'public interest litigation' is a factor to be considered when making costs orders, courts must be able to define the term with precision. They must eschew any notion of the 'I know it when I see it' type of reasoning. If courts are to retain the confidence of litigants and the wider community, they must continually reaffirm and demonstrate that their decisions are based on objective reasons that are articulated and can be defended."

In our view, the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be the rarity which this Court supposed it would be in the South-West Forests Defence Foundation case.

12 We turn then to the submission of the second respondent that its costs should be taxed without regard to the upper limit of the relevant Scale item. The submission was supported by an affidavit of the second respondent's instructing solicitors to the effect that the senior practitioner, junior practitioner (within the meaning of those terms for the purposes of the Costs Determination) and articled clerk engaged in getting the matter up and presenting the submissions of the second respondent spent a significant period of time in drawing affidavits to be filed, and did work "well in excess of ten hours" to get the matter up. No particulars are provided.

13 The submission of the second respondent relies on the Rules of the Supreme Court O 66 r 12(1) which provides:

"Where the Court is of opinion that a Special Order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may order that any particular allowances in any relevant scale be raised or a limit removed and in giving any such direction the Court may fix a limit within which the Taxing Officer may allow such costs."

14 The question of the making of such an order is referred to in the Costs Determination, para 7, where the observation is made that the way in which the Determination is formulated, making explicit the manner in which the maximum allowances in the Scale have been calculated by reference to hourly or daily rates of charge for practitioners of defined seniority or clerks, employed for the period of time set out in the Determination, should enable applications under O 66 r 12 to proceed upon a more firm foundation of knowledge about how the maximum amounts provided in the Scale have been calculated. The cost determination does not impinge upon the basis upon which the court will exercise its discretion to make or refuse a special order as to costs.

15 The Scale treats proceedings by way of prerogative Writ as if appeals to the Full Court, providing a maximum of $2,700 for getting up charged on the basis of 10 hours work done by a senior practitioner of more than five years admission to practice. That maximum would allow for work done by a junior practitioner of less seniority for a greater period of time because of the lower charge out rate upon which the calculations are made. For junior counsel (not Queens Counsel), a daily charge out rate of $2,300 is used as the basis for calculation of a maximum counsel fee of $6,900, allowing for two days of preparation and one day for the hearing.

16 The principles to be applied in considering whether or not to make a Special Order as to costs under O 66 r 12(1) are clear enough. They have been considered in a number of recent cases in this Court. Those authorities were collected and briefly discussed in Lewandowski v Lovell (No 2), unreported; FCt SCt of WA; Library No 960310; 14 June 1996 per Murray J at 11. To the reported cases there mentioned may be added the decision of Ng M in Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242 at 245-6 where reference is also made to additional unreported decisions.

17 In this case reliance is not, and could not, be placed upon the unusual complexity or importance of the case. Reliance is placed upon the amount of work reasonably undertaken and reasonably performed by practitioners of appropriate seniority as constituting a good and sufficient reason to depart from the Scale, bearing in mind the essential character of an order for costs to enable the recovery of those costs which have been reasonably and properly incurred in conducting the litigation.

18 In our opinion, when regard is had to that generally expressed test and the nature of the proceedings in question here, the material advanced by the second respondent is not such as to persuade us that a reasonable recovery of costs, including for the preparation of affidavits, may not be made within the framework of the maximum amounts provided in the Scale fixed by the Determination. We do not consider a Special Order may be justified.

19 In our view the proper order for costs in this case is simply that the applicant should pay the costs of the respondents and Brookridge Investments Pty Ltd, including all reserved costs, to be taxed.