Supreme Court of the ACT|2015-08-21|Before: Refshauge J

Jacka v Australian Capital Territory [2015] ACTSC 239 (21 August 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CIVIL LAW - Jurisdiction, practice and procedure - Costs - Costs follow the event - Public interest litigation - Test case

A Goninan & Co Ltd v Gill [2001] NSWCA 77; (2001) 51 NSWLR 441

Animals' Angels e.V. v The Secretary Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35

Challenger Property Asset Management Pty Ltd v Stonnington City Council [2012] VSC 67

Direction of Public Prosecutions v Ali (No 2) (2009) 25 VR 656

Director of Public Prosecutions v Nguyen [2009] VSCA 147

Howell v Dering [1915] 1 KB 54

Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748

Insurance Australia Ltd v Albrecht (No 2) [2015] ACTSC 94

Jacka v Australian Capital Territory [2009] ACTSC 140

Jacka v Australian Capital Territory [2009] HCATrans 151

Jacka v Australian Capital Territory [2013] ACTSC 199

Jacka v Australian Capital Territory [2015] HCATrans 81

Kent v Cavanagh (1973) 1 ACTR 43

Lewis v Chief Executive Department of Justice and Community Safety [2013] ACTSC 198; (2013) 280 FLR 118

Lewis v Chief Executive of the Department of Justice and Community Safety (No 2) [2014] ACTSC 196

Mann v Carnell [2001] ACTSC 18; (2001) 159 FLR 466 at 467; [7]- [8].

Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72

Physical Disability Council of NSW v Sydney City Council [1999] FCA 815

Qantas Airways Ltd v Cameron (No 3) [1996] FCA 1749; (1996) 68 FCR 387 Friends of Hinchinbrook Society Inc v Minister for Environment (No 5) [1998] FCA 432; (1998) 84 FCR 186

Ritter v Godfrey [1920] 2 KB 47

Ruddock v Vadarlis (No 2) (2001) 115 FCR 229

Russell v Adwan Pty Ltd (2000) 144 ACTR 1

Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060

Vriend v Alberta (1996) 141 DLR (4th) 44

VTS IT PTY Limited v Russell [2015] ACTSC 230

Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (Second Defendant)

1. On 1 October 2013, I dismissed an application by the plaintiff, Mitchell Jacka, for declarations that certain provisions of the Crimes (Sentence Administration) Act 2005 (ACT) were invalid. Those sections authorised the Sentence Administration Board to cancel a periodic detention order made in respect of an offender and place him or her in the custody of the Chief Executive of the Department of Justice and Community Safety. See Jacka v Australian Capital Territory [2013] ACTSC 199.

2. Mr Jacka appealed against that decision. On 12 November 2014, the Court of Appeal dismissed the appeal. See Jacka v Australian Capital Territory (2014) 180 ACTR 207. Mr Jacka sought leave to appeal to the High Court but his application for special leave was dismissed. See Jacka v Australian Capital Territory [2015] HCATrans 81.

3. The proceedings at trial were conducted with related proceedings brought by Steven James Lewis, who made a similar challenge to the validity of the same sections of the Crimes (Sentencing Administration) Act, but who also challenged the hearing about his periodic detention before the Sentence Administration Board on administrative law grounds. I upheld the challenge by Mr Lewis on one administrative law ground but not the challenge to the validity of the legislation. See Lewis v Chief Executive Department of Justice and Community Safety [2013] ACTSC 198; (2013) 280 FLR 118.

4. After I had dismissed both proceedings, I heard arguments in both matters on 17 January 2014 as to the appropriate orders to be made and as to costs.

5. On 14 August 2014 I ordered in the matter involving Mr Lewis that the defendant pay thirty-five percent of the costs of Mr Lewis or a party to party basis. See Lewis v Chief Executive of the Department of Justice and Community Safety (No 2) [2014] ACTSC 196.

6. Regrettably, I did not then determine the costs in these proceedings for reasons not immediately apparent. My attention was only recently drawn to that omission.

7. Accordingly, I now deliver my decision on the costs of the trial and the reasons for my decision.

8. The defendants sought an order for costs. Mr Jacka opposed the making of such an order on the basis that the proceedings were, in reality, public interest proceedings, where a party takes the proceedings in the general interest of the public in determining the constitutional validity (or otherwise) of important legislation in the Territory and so should not have to bear the burden as to costs.

9. Mr P Garrisson SC, Solicitor-General for the Territory, submitted that the ordinary approach should apply, namely that costs should follow the event. I discussed what is meant by "the event" in VTS IT PTY Limited v Russell [2015] ACTSC 230 at [47] by reference to Howell v Dering [1915] 1 KB 54 at 63, namely an "outcome in the presentation to the tribunal of some claim ... which results in a finding".

10. The reliance on the principle that costs follow the event is well-known and has a long history. In Ritter v Godfrey [1920] 2 KB 47 at 52-3 Lord Sterndale MR said:

... there is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him.

11. Since then, this general approach has regularly been followed. See Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748: Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 at 96-7; [66]- [69], 120-2; [134]. In this Territory, see Russell v Adwan Pty Ltd (2000) 144 ACTR 1 at 14; [63]; Mann v Carnell [2001] ACTSC 18; (2001) 159 FLR 466 at 467; [7]- [8].

12. The only ground put forward to justify the exercise of a discretion to depart from that rule was that I should view the proceedings as public interest litigation, where other considerations apply and which justify a departure from the general rule.

13. Nevertheless, as Kirby J pointed out in Oshlack v Richmond River Council at 123; [134]:

Courts, whilst sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation. (footnote omitted)

14. Thus, in many cases of claimed "public interest litigation" the courts have still made the "usual order" that costs follow the event: Qantas Airways Ltd v Cameron (No 3) [1996] FCA 1749; (1996) 68 FCR 387 at 389; Friends of Hinchinbrook Society Inc v Minister for Environment (No 5) [1998] FCA 432; (1998) 84 FCR 186 at 188-9; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 237: [18]; Animals' Angels e.V. v The Secretary Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35 at 74; [131]- [132].

15. Mr Jacka, through his counsel, relied on what Fox J had said in Kent v Cavanagh (1973) 1 ACTR 43 at 55, namely:

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 risk of paying costs to the Government if they fail. They find themselves opposed to parties who are not personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest. Once, not so long ago, litigation was more of a luxury than it now is and for the most part only wealthy people could engage in it. To them was usually left any action necessary to vindicate rights of the public. This is not now regarded as an acceptable situation.

16. In that case, his Honour made no order as to costs. Despite what is said above, his Honour's first concern, which motivated that order, was that "the plaintiffs have succeeded on one point and have brought to notice a serious defect in compliance with statutory procedures" and the matter referred to in the quotation above influenced his Honour "to some extent".

17. That case, however, was a case where the plaintiffs had no personal proprietary interest in the outcome other than "a deep concern for the welfare of the community". It seems to me to be a quite different case to this case.

18. Thus, in an appropriate case, it is clear that the court may exercise a discretion to make a different order and one that reflects the special nature of the proceedings, as accepted by the High Court in Oshlack v Richmond River Council at 91; [49], 122; [134]. That decision, however, seems to be consistent with Kent v Cavanagh.

19. In the High Court decision, Gaudron and Gummow JJ, who, with Kirby J, constituted the majority, identified the factors that would justify a different cost order. Their Honours referred to the following (at 80, [20]):

(ii) The characterisation of proceedings as "public interest litigation" with the "prime motivation" being the upholding of "the public interest and the rule of law" may be a factor which contributes to a finding of "special circumstances" but is not, of itself, enough to constitute special circumstances warranting departure from the "usual rule"; something more is required.

(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna".

(iv) In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation.

(v) The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public.

20. In this case, Mr Jacka's counsel did describe the proceedings as "public interest litigation", but it is, as is noted, not sufficient merely to give that description in itself to justify the departure sought from the ordinary rule.

21. The pursuit of the litigation could not reasonably be said to be for the kind of interests identified in (iii) in the extract for Oshlack v Richmond River Council and there was no indication, other than that Mr Lewis was making a similar challenge, that there was "a significant number of members of the public" who shared the stance taken by Mr Jacka as identified in (iv).

22. In Physical Disability Council of NSW v Sydney City Council [1999] FCA 815 at [7] Madgwick J followed that decision, pointing out that where the "prime motivation" is upholding the public interest in the rule of law, there must nevertheless be more than this. His Honour continued:

That additional quality or requirement may be met by its being shown that the unsuccessful moving party had an arguable case and that the case had raised and resolved significant issues as to the interpretation and future administration of a statute dealing with matters of public interest and concern, which has practical implications for relevant sections of the public and for private persons.

The decision in Oshlack does not say and, in my opinion, it is not the law that in every case of public interest litigation, where there are significant issues involved, a party who brings proceedings as to a matter of public interest may do so with impunity as to costs, if there is an arguable case. It seems to me that the reasonably perceived strength of the applicant's case, the time of institution of the proceedings and the manner in which the matter proceeds must also be considered.

24. My attention was also drawn to Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060 at [8] - [12] where Drummond J considered the relevant authorities and, in particular, noted the significant personal interest in the litigation that was there involved and which distinguished the litigation from public interest litigation of a kind that would justify a different costs order.

25. Thus, Mr Jacka had a significant personal interest in the outcome of the litigation as he sought to avoid the inevitable and mandatory consequences of his breach of his periodic detention obligations. While it was suggested in the defendant's submissions that Mr Jacka was also seeking damages or compensation, there was no such claim in either the Writ of Summons which commenced the proceedings in the High Court (see Jacka v Australian Capital Territory [2009] HCATrans 151) or in the Amended Statement of Claim.

26. It is relevant that, at the time Mr Jacka commenced the proceedings in the High Court, by filing his Writ of Summons on 19 June 2009, Mr Lewis had already commenced proceedings in this Court, on 25 March 2009 (Lewis v Chief Executive of the Department of Justice and Community Safety at 123; [9]) in which the same constitutional relief was sought. Both plaintiffs were represented by the same firm of solicitors.

27. It is unsurprising then that, when the proceedings in the High Court were remitted to this Court, they were ordered to be heard together: Jacka v Australian Capital Territory [2009] ACTSC 140.

28. It may be that the characterisation of this case as involving "public interest litigation" was not quite correct, given the rather specialised nature of the interest involved. It perhaps is better assessed as whether it is, in reality, a test case, though I accept that neither party sought so to characterise it as such.

29. In Vriend v Alberta (1996) 141 DLR (4th) 44 at 53; [12], Hunt JA defined a test case as:

... a case where the parties seek primarily to settle a point of law, and where the impact of that rule on those parties is of secondary importance to the settlement of the rule itself.

30. Nevertheless, as Croft J observed in Challenger Property Asset Management Pty Ltd v Stonnington City Council [2012] VSC 67 at [54]:

Clearly it cannot be the position that every case that sheds light on the interpretation of important statutory provisions - and is thereby in a sense of general public interest and application - should be regarded as a "test case".

31. It is said that what is required for a test case is that the point at issue is required to be able to be assessed as of a wide general importance and of general application where the proceedings were rightly considered to be conducted for a wider public interest. See, for example, Direction of Public Prosecutions v Ali (No 2) (2009) 25 VR 656 at 661; [19], 664: [44]; A Goninan & Co Ltd v Gill [2001] NSWCA 77; (2001) 51 NSWLR 441 at 661: [60]; Director of Public Prosecutions v Nguyen [2009] VSCA 147.

32. Recently, Mossop AsJ had to consider the question in Insurance Australia Ltd v Albrecht (No 2) [2015] ACTSC 94 at [5], where his Honour observed that the description "test case" is generally used to describe a case used as a vehicle designed to test the operation of a specific statutory provision or legal principle where the outcome of the individual case is of less significance than the principle of broader application that it establishes. Where a party with significant resources, for whom the wider principle is of significance, brings such a case, that broader significance is something to be considered in exercising the discretion in relation to costs with the results that a party "dragged into" such a case may be treated more favourably than he or she otherwise would.

33. While this case could arguably be described as a test case if it stood alone, the fact is that the proceedings in Lewis v Chief Executive of the Department of Justice and Community Safety were, at the time Mr Jacka commenced this case, already on foot. Having identified the relevant issues, Mr Jacka chose to continue his proceedings, even after they were remitted to this Court and heard at the same time.

34. He was not separately represented, he put no separate argument and he sought an order that would secure his release, though in the form of declarations. The inevitable difference is that he was seeking a private benefit from the litigation.

35. It seems to me that there is no basis for not applying the usual principle that costs follow the event. Accordingly I shall so order.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

(Sentence Administration) Act 2005

Jacka v Australian Capital Territory [2015] ACTSC 239

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Judgment (74 paragraphs)

Jacka v Australian Capital Territory [2015] ACTSC 239 (21 August 2015)

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