Ritson v Secretary of Department of Justice and anor

Submissions of the defendants 9Counsel for the defendants relied on the provisions of Rule 42.1 of the Uniform Civil Procedure Rules 2005 ("the Rules") in support of the submission that an order should be made that the plaintiff pay the defendants' costs. 10It was submitted that the effect of r. 42.1 of the Rules was that the successful party to litigation will generally be awarded costs unless it appears to the court that some other order is appropriate. It was submitted that it is for the party seeking to displace the effect of that rule (in this case the plaintiff) to demonstrate that there is something out of the ordinary that would justify some other order being made: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 at [18] per Young JA. It was submitted that in the present case the plaintiff had failed to identify any circumstance(s) which justified a departure from the general rule. 11In response to the plaintiff's submission regarding the acknowledgment of the "shortcoming" attaching to one of the determinations, it was submitted that this could not constitute a reason for departing from the general rule. Counsel for the defendants relied, in particular, on the fact that the decision making process was later re-opened to address the effect of any such shortcoming. It was further submitted that nothing about Ms de Castro Lopo's involvement in the decision making process had any bearing whatsoever on the question of costs. 12Counsel for the defendants accepted that in some circumstances the fact that litigation is "public interest litigation" may be a proper reason for departing from the general rule, despite the terms of r. 42.1: Oshlack v Richmond River Council (1998) HCA 11; [1998] 193 CLR 72; Hastings Point Progress Association (supra) per Young JA at [24]. However, it was submitted that there was nothing about this case that would justify it being classified as public interest litigation. It was submitted that not one of the usual indicia of public interest litigation was present and that properly viewed, the plaintiff was simply pursuing his own private interests, and was not bringing the proceedings to benefit anyone other than himself. 13It was further submitted that the proceedings did not raise any novel issue of law, that they did not contribute in any material way to the proper understanding, development or administration of the law, and that they did not affect a significant section of the public. 14It was submitted that in all of these circumstances, the plaintiff should pay the defendant's costs.

Consideration 15Rule 42.1 of the Uniform Civil Procedure Rules is in the following terms: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 16In Oshlack (supra) McHugh J observed (at [67]): "The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have occurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs for the unsuccessful litigation." 17The first of the plaintiff's submissions relied upon an acknowledgment made by counsel for the defendants in the course of the hearing regarding what I described as a "shortcoming" in the manner in which one of the determinations had been made: see my previous judgment at [72]. Those circumstances do not, either alone or in combination with other factors, justify the order sought by the plaintiff. Even accepting the acknowledged shortcoming, I made it clear (at [85]) that any issue arising from it was subsequently overcome by the plaintiff being given a complete opportunity to address the matters in question. 18There is nothing about Ms de Castro Lopo's conduct which supports the plaintiff's position. I do not accept that Ms de Castro Lopo was acting in circumstances where she had a conflict of interest. Even if she was, as I pointed out (at [109] of my judgment) she was not the decision maker. 19The only basis on which it might be suggested that the defendants fell short of adopting good administrative practice was in the isolated respect which gave rise to the shortcoming to which I have previously referred. For the reasons stated in my judgment, any shortcoming was overcome. The fact that I reached the conclusion that the proceedings should be dismissed tends completely against any general proposition that the defendants fell short in the manner suggested. 20The plaintiff's reliance upon the decision in Ritter (supra) to support this position does not assist him. In that case, Atkin LJ observed (at [60]): "In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains. These principles require further expansion. By (1) is meant - has so conducted himself as to lead the plaintiff reasonably to believe that he had a good cause of action against the defendant, and so induce him to bring the action...(2) and (3) may possibly overlap. (2), I think, would include improper conduct in, or connected with, litigation, calculated to defeat or delay justice. Such conduct would also be included in (3), which, I think, further extends to cases where the facts complained of, though they do not give the plaintiff a cause of action, disclose a wrong to the public." 21There is no feature of the present case which falls within any of those categories. I note that the general rule as stated by Atkin LJ was applied in Sunday Times Newspaper Co Limited v McIntosh (1933) 33 SR (NSW) 371 at 377: 50 WN (NSW) 155 at 157 and again in Trade Practices Commission v Nicholas Enterprises Pty Limited and ors (1979) 28 ALR 201 at 208. 22Finally, as I have noted, the plaintiff submitted that the proceedings should be characterised as having been (at least in part) brought in the public interest. Whether proceedings fall into such a category is a determination to be made by reference to a number of different factors. In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365, Lloyd J identified the following considerations relevant to that question: (i)the nature of the public interest served by the litigation; (ii)whether that interest is confined to a relevantly small number of people; (iii)whether the applicant sought to enforce public law obligations; (iv)whether the prime motivation of the litigation is to uphold the public interest in the rule of law; and (v)whether the applicant has no pecuniary interest in the outcome of the proceedings. 23More recently in Hastings Point Progress Association (supra) Young JA considered the question of what is meant by the term "public interest litigation" and said (at [42]): "...the cases suggest that the court looks to see whether the plaintiff has a pecuniary interest in the subject matter, whether its members have a commercial interest, whether the prime motivation is to uphold the law and public obligations and whether a sufficiently wide section of the public is sought to be benefitted by the proceedings." 24I accept the submission advanced on behalf of the defendants that not one of these indicia is present in this case. On the evidence before me, there is nothing to suggest that the plaintiff brought the proceedings to benefit anyone other than himself. In particular, there is no evidence which would support the proposition that his motivation in bringing the proceedings was to uphold the public interest and the rule of law. 25Further, I do not accept that the subject matter of the litigation related to a "novel issue". The decision I reached was based upon the application of well known principles of natural justice and procedural fairness. The defendants conceded, for the purposes of this case, that those principles applied. In these circumstances, I am not able to accept the plaintiff's submission that the litigation will contribute in a material way to the proper understanding, development or administration of the law, nor am I able to accept the submission that the litigation affects, in any material way, a significant section of the public. 26Finally, I note that the plaintiff submitted that the various decisions made by the defendants to decline his application for ex gratia legal assistance had already imposed significant financial consequences upon him. That may well be the case, but it has no bearing on the question of costs. In this regard, the further observations of McHugh J in Oshlack (supra) (at [68]) are pertinent: "As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increase, and often unnecessary, burden on the scarce resources of the publicly funded system of justice." 27None of the matters relied upon by the plaintiff justify a departure from the general rule that costs should follow the event.

ORDERS 28I make the following order: (3)The plaintiff is to pay the costs of the first and second defendants as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2014