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
Appeal allowed with costs.
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.
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.
[1](1990) 170 CLR 534 at 542.
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.
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
This is an appeal against a decision of the New…
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- Case
- [1998] HCA 11
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: HUGH J
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