Jacka v Australian Capital Territory - [2015] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jacka v Australian Capital Territory
Citation:	[2015] ACTSC 239
Hearing Date(s):	17 January 2014
DecisionDate:	21 August 2015
Before:	Refshauge J
Decision:	The Plaintiff pay the Defendant’s costs.
Category:	Principal Judgment
Catchwords:	CIVIL LAW – Jurisdiction, practice and procedure – Costs – Costs follow the event – Public interest litigation – Test case
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	A Goninan & Co Ltd v Gill (2001) 51 NSWLR 441 Animals’ Angels e.V. v The Secretary Department of Agriculture (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) 280 FLR 118 Lewis v Chief Executive of the Department of Justice and Community Safety (No 2) [2014] ACTSC 196 Mann v Carnell (2001) 159 FLR 466 at 467; [7]-[8]. Oshlack v Richmond River Council (1998) 193 CLR 72 Physical Disability Council of NSW v Sydney City Council [1999] FCA 815 Qantas Airways Ltd v Cameron(No 3) (1996) 68 FCR 387 Friends of Hinchinbrook Society Inc v Minister for Environment(No 5) (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 (4^th) 44 VTS IT PTY Limited v Russell [2015] ACTSC 230
Parties:	Mitchell Jacka (Plaintiff) Australian Capital Territory (First Defendant) Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (Second Defendant)
Representation:	Counsel Mr FJ Purnell SC (Plaintiff) Mr P Garrisson SC (Defendants)
Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendants)
File Number(s):	SC 834 of 2009

REFSHAUGE J:

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACTSC 239
Decision Date: 21 August 2015

CaseChat Overview and Summary

Jacka v Australian Capital Territory was a case involving the plaintiff, Jacka, suing the Australian Capital Territory over an issue pertaining to public interest litigation. The case was brought before the court to determine the costs associated with the proceedings, particularly whether the plaintiff or the defendant should bear these costs. The plaintiff, Jacka, argued that the litigation was a test case of significant public interest, and therefore, the costs should not follow the event but rather be borne by the defendant. The defendant, the Australian Capital Territory, contended that the usual rule that costs follow the event should apply.

The legal issues before the court centred on whether the public interest nature of the litigation warranted a departure from the standard rule that costs follow the event. Specifically, the court had to determine whether the principles of public interest litigation could be invoked to shift the financial burden of litigation costs from the losing party to the winning party, and if so, under what circumstances. The court was also tasked with defining the scope and parameters of public interest litigation in the context of determining litigation costs.

The court found that the nature of the case did not warrant a departure from the standard rule that costs follow the event. It held that the public interest aspect of a case does not automatically entitle a party to an exemption from the usual cost consequences. The court emphasised that the principle of costs following the event serves an important function in maintaining the integrity of the legal system and discouraging frivolous litigation. It concluded that there was no sufficient basis to depart from this principle in the present case. As a result, the plaintiff was ordered to pay the costs of the defendant.

Orders

Orders of the court

The Plaintiff pay the Defendant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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