Blanket v The Housing Authority
[2014] WASC 409 (S)
•27/03/15
BLANKET -v- THE HOUSING AUTHORITY [2014] WASC 409 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 409 (S) | |
| Case No: | CIV:1230/2013 | ON THE PAPERS | |
| Coram: | PRITCHARD J | 27/03/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs order made in favour of the respondent | ||
| B | |||
| PDF Version |
| Parties: | KAREN MARIE BLANKET THE HOUSING AUTHORITY |
Catchwords: | Costs Whether special costs order should be made Whether circumstances justify departure from the usual order as to costs Public interest litigation Test case Access to justice Turns on own facts |
Legislation: | Nil |
Case References: | Blanket v The Housing Authority [2014] WASC 409 Collard v The State of Western Australia [No 4] [2013] WASC 455 (S) Kidd v The State of Western Australia [2014] WASC 99 (S) Nettheim v Minister for Planning and Local Government (No 2) (Unreported, NSWLEC, 28 September 1988) Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Roe v The Director General, Department of Environment and Conservation (WA) [2011] WASCA 57 (S) Ruddock v Vadarlis (No. 2) [2001] FCA 1865; (2001) 115 FCR 229 Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; (2007) 98 ALD 651 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CIV 1232 of 2013
- Applicant
AND
THE HOUSING AUTHORITY
Respondent
Catchwords:
Costs - Whether special costs order should be made - Whether circumstances justify departure from the usual order as to costs - Public interest litigation - Test case - Access to justice - Turns on own facts
Legislation:
Nil
Result:
Costs order made in favour of the respondent
Category: B
Representation:
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : Fremantle Community Legal Centre
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Blanket v The Housing Authority [2014] WASC 409
Collard v The State of Western Australia [No 4] [2013] WASC 455 (S)
Kidd v The State of Western Australia [2014] WASC 99 (S)
Nettheim v Minister for Planning and Local Government (No 2) (Unreported, NSWLEC, 28 September 1988)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v The Director General, Department of Environment and Conservation (WA) [2011] WASCA 57 (S)
Ruddock v Vadarlis (No. 2) [2001] FCA 1865; (2001) 115 FCR 229
Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; (2007) 98 ALD 651
1 PRITCHARD J: In these Applications, Ms Blanket's application for judicial review of a decision of the Housing Authority (the Authority), and for a review of the decision of a Magistrate pursuant to s 36 of the Magistrates Court Act 2004 (WA), were dismissed. Following the delivery of my reasons for decision,1 I made orders by consent for the determination of the question of costs on the papers. These are my reasons in respect of the parties' applications for costs.
2 The Authority seeks an order that Ms Blanket pay the Authority's costs of each of the Applications, including reserved costs, to be taxed if not agreed, on the basis that it successfully defended each Application.2
3 Ms Blanket seeks an order in each Application that there be no order as to costs on the basis that special circumstances exist to justify departing from the usual order as to costs.3 Those special circumstances are said to be that each Application should be characterised as a 'test case', or as constituting 'public interest litigation', and that to make the usual order as to costs in cases such as this would constitute 'a significant barrier to accessing justice'.4
4 For the reasons set out below, in my view the costs order which should be made in each Application is that Ms Blanket pay the Authority's costs, including reserved costs, to be taxed if not agreed.
Principles in relation to the award of costs
5 The court has a broad discretion to make orders in relation to the costs of, and incidental to, a proceeding.5 That discretion must be exercised judicially in accordance with established principles and factors directly connected with the litigation.6
6 The most important factor which guides the exercise of the costs discretion is the result of the litigation.7 Generally speaking, the court will make an order that the successful party to an action recover his costs from the unsuccessful party, and this is known as the usual order as to costs. A court will depart from the usual order as to costs only if special circumstances are shown to exist.8
7 I discussed some of those special circumstances in my decision in Collard v The State of Western Australia [No 4].9More recently, the principles were discussed by Beech J in Kidd v The State of Western Australia.10It is unnecessary to repeat those principles here. It suffices to say that there have been some instances in which the fact that a case can properly be described as a test case, or involves a matter of public interest, has been relied upon (together with all of the other circumstances of the case) as giving rise to special circumstances warranting a departure from the usual order as to costs. There are, however, no fixed exceptions to the usual order as to costs in this context, and in each case the court's discretion must be exercised having regard to all of the facts and circumstances of the case.
The parties' submissions
8 The Authority's position on costs was that as it was wholly successful in defending the Applications, the starting point for considering the proper exercise of the Court's discretion with respect to costs is that the Authority should be able to recover its costs from Ms Blanket. The Authority submitted that the circumstances of this case did not involve special circumstances which justified departure from that general rule.11
9 Ms Blanket pointed to the following factors as warranting a departure from the usual order as to costs in this case. First, it was submitted that the Applications involved the public interest because:
• The Applications raised for consideration the meaning and operation of s 64 of the Residential Tenancy Act 1987 (WA) (the RT Act) and clarification of the meaning of that section 'was essential to future practice and utilisation of the section';12
• The subject matter of the Applications involved a matter in the public interest and the Applications were brought to advance that public interest13 in that the Application 'was arguable and sought to resolve a significant issue for the administration … of a statutory provision';14 and
• Ms Blanket 'sought clarification on behalf of a large group of individuals'.15
10 Secondly, it was Ms Blanket's case that the Applications were test cases and that the construction of the statutory provisions in these Applications 'have a wide significance' in that 'the decision made affects all those who are tenants in public housing'.16
11 Thirdly, Ms Blanket submitted that 'from the perspective of a marginalised or disadvantaged litigant, the exposure to adverse costs orders and the uncertainty of this risk in test cases is a significant barrier to accessing justice'.17
The circumstances of this case do not warrant a departure from the usual order as to costs
12 The submissions advanced by Ms Blanket have not persuaded me that special circumstances exist in this case to warrant a departure from the usual order as to costs.
13 Although it is true that these Applications clarified the meaning and operation of s 64 of the RT Act and that the construction of that section may be of relevance in other cases, that factor alone is not sufficient to warrant a departure from the usual order as to costs. Public law cases commonly involve the construction of statutory provisions which have a wide application, yet no special rule in relation to costs has developed in that context. The same point can be made in relation to the submissions that this case was a test case, and had a wide significance because it resolved a question about the administration of the RT Act and clarified the circumstances in which s 64 of the RT Act may be used.
14 In so far as it was submitted that the arguments advanced by Ms Blanket were arguable, I am unable to accept that submission in respect of the Review Application. That Application was fundamentally misconceived.18 Quite apart from all of the other circumstances of the case, that fact alone militates strongly against any departure from the usual order as to costs in relation to the Review Application. And while I accept that Ms Blanket advanced an arguable case in the Prerogative Writ Application, that factor of itself does not warrant a departure from the usual order as to costs.
15 As for the submission that Ms Blanket sought clarification in relation to the meaning and operation of s 64 of the RT Act on behalf of a large number of individuals, that submission fails, first, on factual grounds. There was nothing in the materials before the Court, or in the conduct of the case on behalf of Ms Blanket, to suggest that the Applications were brought on behalf of a large group of individuals. Furthermore, it was apparent that Ms Blanket was pursuing a private interest: the factual context for the Applications was confined to Ms Blanket's attempt to prevent the Authority from terminating her tenancy.
16 The fact that litigation may advance private interests is not necessarily fatal to its being characterised as being in the public interest,19 because the question is not what was the plaintiff's subjective motivation in bringing the litigation,20 but rather, whether the litigation was of a 'public or private character'.21 However, in my view, the case as a whole did not have a public character. In addition to the factual context, the submissions and the relief sought focused on the individual circumstances of this case, and did not seek to encompass the application of s 64 of the RT Act in a broader context. There was, for example, no suggestion that this case was brought to resolve a legal question which had arisen in a number of cases in relation to the operation of the RT Act or in respect of which there was divergent authority.22
17 In the end I am left with the conclusion that there was nothing to distinguish this case from the numerous other public law cases where the outcome of the litigation results in clarification of the meaning or operation of a statutory provision,23 and in that sense may assist future litigants, but where no special costs rule applies.
18 Finally, there can be no doubt that the risk of exposure to adverse costs orders may act as a deterrent to litigation. It may also have the effect that the marginalised or disadvantaged litigant (and others besides) may be unable to pursue litigation in the courts. Much has been written about the cost of litigation, and what measures might be taken to increase access to justice, especially for the economically disadvantaged in our society. But for the courts to create exceptions from the usual order as to costs in an attempt to overcome this problem would be to risk replacing one problem, or perceived injustice, with others. By way of example, the usual rule as to costs is predicated on fairness: fairness dictates that the unsuccessful party should ordinarily be liable for the costs of the unsuccessful litigation because if the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did.24 A general departure from the usual order as to costs would have the unfair consequence (as between the parties to litigation) that the party who successfully defended litigation may have to bear their costs in doing so, notwithstanding that the decision to commence, and pursue, the proceedings was beyond their control. Furthermore, if there were a general departure from the usual order as to costs, so that the parties were free to pursue litigation without any risk of adverse costs orders, that would inevitably lead to an increase in litigation which in turn would add to the 'burden on the scarce resource of the publicly funded justice system'.25
19 There are, of course, other means by which the impact of the usual order as to costs may be ameliorated. It is always open to a successful litigant not to pursue an order for costs, or not to enforce an order for costs made in favour of that party. Alternatively, prior to the commencement of litigation, the parties may be able to reach agreement in relation to the costs of the litigation. In some cases, the Parliament has legislated to adopt different rules in relation to costs orders in litigation26 or in relation to the payment of costs.27 In my view, the adoption of different rules of general application in relation to the costs of litigation, which are not premised on the concept of fairness as between the parties to the litigation, raises questions of policy which are properly a matter for the legislature.
Conclusion
20 There will be an order in each Application that Ms Blanket pay the Authority's costs, to be taxed if not agreed.
1Blanket v The HousingAuthority [2014] WASC 409. These reasons should be read in conjunction with those earlier reasons for decision. The same abbreviations have been used.
2 Respondent's Outline of Submissions [2].
3 Applicant's Outline of Submissions [26].
4 Applicant's Outline of Submissions [31].
5Supreme Court Act 1935 (WA) s 37; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
6Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72 [65] (McHugh J, Brennan CJ agreeing), [22] (Gaudron & Gummow JJ).
7Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72 [66] (McHugh J, Brennan CJ agreeing).
8Roe v The Director General, Department of Environment and Conservation for the State of Western Australia[2011] WASCA 57 (S) [12] (Martin CJ & Murphy JA); Ruddock v Vadarlis (No. 2)[2001] FCA 1865; (2001) 115 FCR 229;Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; (2007) 98 ALD 651 [29] (Marshall J).
9Collard v The State of Western Australia [No 4] [2013] WASC 455 (S) [12] - [20].
10Kidd v The State of Western Australia[2014] WASC 99 (S) [7] - [13] (Beech J).
11 Respondent's Outline of Submissions [11].
12 Applicant's Outline of Submissions [19].
13 Applicant's Outline of Submissions [22].
14 Applicant's Outline of Submissions [21].
15 Applicant's Outline of Submissions [24].
16 Applicant's Outline of Submissions [28].
17 Applicant's Outline of Submissions [31].
18Blanket v The HousingAuthority [2014] WASC 409 [140].
19Nettheim v Minister for Planning and Local Government (No 2) (Unreported, NSWLEC, 28 September 1988), 3 - 5 (Cripps CJ).
20Kidd v The State of Western Australia [2014] WASC 99 (S) [17] (Beech J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [140].
21Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [140] (Kirby J).
22 Cf, for example, Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229, 241 [28].
23 See Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [75].
24Oshlack v Richmond River Council(1998) 193 CLR 72, 97 [68] (McHugh J). The very limited exceptions to that rule which have been developed at common law primarily relate to disentitling conduct by the successful party - see Oshlack v Richmond River Council(1998) 193 CLR 72, 97 [70] (McHugh J).
25Oshlack v Richmond River Council(1998) 193 CLR 72, 97 [68] (McHugh J).
26 See for example, State Administrative Tribunal Act 2004 (WA) s 87(1).
27 See, for example, Suitors' Fund Act 1964 (WA) s 10 and s 11.
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