Plaintiff v Defendant

3 Both parties have filed and served short written submissions.[2] The defendant's solicitor also filed and served a short affidavit.[3]

(a) no order should be made in respect of costs incurred prior to the filing and service of the defendant's defence on 30 September 2022, at which time the defendant indicated its reliance upon the Code of Practice for the Welfare of Animals in Hunting (Revision no.1) ('Code'); and/or

(b) no order should be made in respect of the costs of the proceeding owing to the 'public interest'.

5 In respect of the latter submission, the plaintiff identified the following factors that, it was submitted, ought bear upon the exercise of the discretion-[4]

... the litigation was brought to resolve a genuine ambiguity as to the legality of Parks Victoria's conduct (as reinforced by Parks Victoria's own failure to correctly identify the source of its power to do what would otherwise have been a contravention of the criminal law); that the litigation raised a novel legal question of some complexity and has resulted in a clarification of the law in an area that has generated widespread public interest; that the motivation of the ABA was not to vindicate any private interest; that there was no dispute [that] the ABA had standing to seek the relief it did enforcing the limits of the public law; and that the parties conducted the proceeding expeditiously and in a manner which significantly narrowed the issues in dispute.[5]

[Footnotes omitted]

6 Among other things, the defendant referred to the fact that, after the filing of the defendant's defence, an offer was made in writing to the effect that the defendant would bear its own costs if the proceeding were discontinued. The defendant submitted that the usual order ought be made.

7 The general rule is that costs follow the event. The rule itself reflects various public interest considerations. That is why such an order will usually be made even if an unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceeding.[6]

8 It follows that while there can be circumstances in which the general rule ought be taken not to apply - such as, for example, where orders are made in respect of the disposition of discrete issues - that is not to displace the general rule.

9 The position outlined above indicates why it is that care must be taken with attempts to characterise proceedings as 'public interest litigation' with a view to avoiding the operation of the general rule.[7]

10 I do not mean to suggest anything quite as unsubtle as that is presently pressed on behalf of the plaintiff; indeed, the plaintiff's submissions squarely acknowledge the point. However, the end point of the multifactorial approach thereafter advanced - which I have extracted above - can have the effect of achieving the same result.

11 It is for that reason that, despite the number of 'factors' presently advanced on behalf of the plaintiff, care must be taken in order to determine whether there is really any persuasive reason why costs ought not follow the event. In that regard -

(a) I accept that the litigation presented questions that had not previously been determined, but I am much less convinced that any of it was truly 'novel'. The questions fell for determination by reference to recognised principles. In that sense, it was not much different to 'ordinary litigation';

(b) similarly, it may be accepted for the purposes of argument that there was 'genuine ambiguity as to the legality of Parks Victoria's conduct', but again that is not really any different to any ordinary dispute;

(c) I accept that the litigation has resulted in 'clarification' of the law in 'an area that has generated widespread public interest', but litigation often results in 'clarification of the law' (hopefully) and the presence of 'widespread public interest' is not the same as litigation being in brought in the public interest;

(d) while the litigation might not have been brought to 'vindicate' a 'private interest' in any narrow sense; it was brought with a view to advancing the personal convictions of the plaintiff's members;

(e) whilst it was not said that the plaintiff lacked standing to bring the proceeding, it does not follow that the general rule ought not apply; and

(f) I have acknowledged that the parties conducted the proceeding expeditiously and in a manner 'which significantly narrowed the issues in dispute'. Indeed, the conduct of the proceeding by both parties is to be commended. On the other hand, all that occurred was a very responsible observance of the obligations created by statute and the Rules of Court. It is not really a strong reason to displace the general rule.

12 I do not mean to suggest that all of the above 'factors' ought be considered to carry no weight. Plainly, there is some weight in the overall point. However, the position seems to me to be no more than merely arguable.

13 Further, it seems to me that some care should be taken with any direct or indirect suggestion that the present litigation was unarguably in the 'public interest'. I do not doubt that the plaintiff and its members passionately believe that such actions in defence of the brumbies are in the 'public interest'. However, the material in evidence reveals a contrary ecological and other perspective which, I can well imagine, could sponsor an equally passionate counterclaim directed to a different facet of the 'public interest'. It is perhaps sufficient to say that in the present instance a consideration of the 'public interest' seems likely to give rise to conflicting claims that are apt to expose an issue that is rather more complicated in complexion than that which has arisen in some of the cases referred to in submissions.[8]

14 In any event, what I have said in respect of the factors advanced by the plaintiff should be sufficient to indicate that, on balance, the present contention that the general rule ought not apply should be rejected.

15 As to the more limited submission directed to the costs incurred prior to 30 September 2022, whilst it was sought that no order for costs ought be made in respect of costs incurred prior to that date, it was not said that any earlier mention of the Code by the defendant would have avoided the litigation.

16 In truth, reliance by the defendant on the Code in its defence filed and served on 30 September 2022 merely had the consequence that contentions that would otherwise have been articulated in the plaintiff's statement of claim came to be articulated later in its reply filed on 14 October 2022.

17 In that sense, the defence of the defendant did no more than side step an aspect of that which went before it, which is hardly remarkable in litigation, even when there has been prior correspondence, and not a very firm foundation upon which to determine that no order should be made in respect of such costs incurred prior to that date.

18 Nor was it submitted that it was a situation in respect of which it would be appropriate to make an order in respect of that discrete issue, and I would not accept that it would presently be appropriate to do so.

19 What I have said should be sufficient to make it clear that, in the present instance, in my view, the general rule applies.

20 An appropriate form of orders disposing of all issues will be provided to the parties together with these reasons.

[1] Australian Brumby Alliance Inc v Parks Victoria [2023] VSC 26.

[2] Plaintiff's submissions on costs dated 9 February 2023, Submissions of Parks Victoria as to final orders dated 10 February 2023.

[3] Affidavit of Mark Richard Hayes sworn 10 February 2023.

[4] Cf Darebin City Council & Anor v Municipal Association of Victoria (No 2) [2017] VSC 87.

[5] Plaintiff's submissions on costs dated 9 February 2023, [5].

[6] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 566-567.

[7] Cf MyEnvironment Inc v VicForests [2012] VSC 111.

[8] For example, Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 and MyEnvironment Inc v VicForests [2012] VSC 111.