Oshlack v Richmond River Council

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HIGH COURT OF AUSTRALIA

BRENNAN CJ,
GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

AL OSHLACK  APPELLANT

AND

RICHMOND RIVER COUNCIL  RESPONDENT

Oshlack v Richmond River Council (S208-1996) [1998] HCA 11
25 February 1998

ORDER

  1. Appeal allowed with costs.

  1. Set aside the orders of the New South Wales Court of Appeal and in lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

J Basten QC with N J Williams and M Thangaraj for the appellant (instructed by Bartier Perry & Purcell)

B R McClintock SC with G O'L Reynolds for the respondent (instructed by Hannigans)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Oshlack v Richmond River Council

Costs – Statutory power under environmental planning and assessment legislation to award costs – Relevant considerations – "Public interest" – Arguable case – Significant issues of interpretation of that legislation – Whether discretion with respect to costs miscarried.

Environmental Planning and Assessment Act 1979 (NSW), s 123.

Land and Environment Court Act 1979 (NSW), s 69.

  1. BRENNAN CJ.   Costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party.  In Latoudis v Casey[1] Mason CJ said that "in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant".  In that case, the litigation concerned the enforcement of the criminal law, a subject in which the public has a considerable interest.  Yet costs were ordered in favour of a successful defendant against a police officer who, in the course of his duty, instituted a prosecution of the defendant in the Magistrates Court of Victoria.

  2. The present case concerns the administration of the Environmental Planning and Assessment Act 1979 (NSW), a subject in which the public has a considerable interest. But the public interest in the administration of that Act is no greater than the public interest in the enforcement of the criminal law. My dissent in Latoudis v Casey acknowledged that the police officer was serving the public interest, not his own[2].  Just as the police officer's serving of the public interest did not lead the Court to refuse costs to the successful defendant in that case, the fact that the appellant brought the present proceedings in the public interest for the protection of endangered fauna does not provide a sufficient reason by itself for refusing the successful respondent its costs in the present case.  To do so would be to depart from the principle laid down in Latoudis v Casey.

    [2](1990) 170 CLR 534 at 544-545.

  3. I am therefore in general agreement with the reasons for judgment of McHugh J.  I would dismiss the appeal.

GAUDRON AND GUMMOW JJ

The history of the litigation

  1. This is an appeal against a decision of the New…

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Details
Case
[1998] HCA 11
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia by Richmond River Council against an order made by the New South Wales Court of Appeal. The dispute originated from an application by Mr. Oshlack for injunctive and declaratory relief, which was dismissed by the primary judge. The primary judge had also made an order that there be no order as to costs, despite the dismissal of Mr. Oshlack's application. The Council sought to appeal this costs order.

The High Court was required to determine whether the primary judge had miscarried in the exercise of their discretion regarding costs. Specifically, the Court had to consider the relevant factors a court may take into account when awarding costs under section 69(2) of the Court Act, particularly in the context of environmental litigation and the concept of "public interest" litigation. The Court also had to assess whether the primary judge had correctly identified "special circumstances" to justify a departure from the usual rule that costs follow the event.

The High Court reasoned that while the discretion as to costs is broad, the traditional rule that costs follow the event, which originated in private litigation, requires careful consideration in cases involving the enforcement of public law obligations under environmental legislation. The Court acknowledged that characterising litigation as being in the "public interest" and motivated by a desire to uphold environmental law and protect endangered fauna, as was the case for Mr. Oshlack, could contribute to a finding of special circumstances. However, it was not sufficient on its own. The primary judge had also found that the appellant's challenge was arguable, raised significant issues of statutory interpretation with implications for various parties, and that a significant number of the public shared the appellant's stance. The High Court concluded that these factors, taken together, constituted sufficient special circumstances to justify departing from the ordinary rule.

The High Court allowed the appeal, setting aside the orders of the New South Wales Court of Appeal and ordering that the appeal to that Court be dismissed with costs.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the New South Wales Court of Appeal and in lieu thereof, order that the appeal to that Court be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRENNAN CJ (dissent) HUGH J
Section 69(2) of the Court Act stated[18]:"Subject to the rules and subject to any other Act:(a) costs are in the discretion of the Court;(b)the Court may determine by whom and to what extent costs are to be paid; and(c)the Court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis."Section 74(1)(e) authorises the making of rules with respect to the costs of proceedings in the Court. No rules made thereunder were relied upon in argument on this appeal.[18]Section 69(2) was in this form at the time Stein J made the order with respect to costs. It has since been amended by the Legal Profession Reform Act 1993 (NSW), Sched 6 which commenced on 1 July 1994.The decision of the primary judge In exercising the discretion conferred by s 69(2) of the Court Act by a determination that there be no order as to costs, despite the dismissal of the appellant's application for injunctive and declaratory relief, the primary judge took various matters into account. They included the following:(i)The "traditional rule" that, despite the general discretion as to costs being "absolute and unfettered", costs should follow the event of the litigation "grew up in an era of private litigation". There is a need to distinguish applications to enforce "public law obligations" which arise under environmental laws lest the relaxation of standing by s 123 have little significance[19].(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[20].(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"[21].(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[22].(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[23].(vi)It followed that there were "sufficient special circumstances to justify a departure from the ordinary rule as to costs"[24].In an examination of the reasons of the primary judge with respect to costs, it should be borne in mind that his Honour was dealing with an application for costs by both the developer and the Council, not the Council alone. The appeal to this Court is limited to the denial of costs to the Council.[19](1994) 82 LGERA 236 at 243‑244.[20](1994) 82 LGERA 236 at 243‑244.[21](1994) 82 LGERA 236 at 246.[22](1994) 82 LGERA 236 at 246.[23](1994) 82 LGERA 236 at 244‑246.[24](1994) 82 LGERA 236 at 246.

Ratio Decidendi

Legal Principle Established

Established by: HUGH J

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