Phillips & Ors v Chief Health Officer & Anor
[2022] NTSC 29
•11 April 2022
CITATION:Phillips & Ors v Chief Health Officer & Anor [2022] NTSC 29
PARTIES:PHILLIPS, Ray
and
HAMMETT, Conan Thomas
and
ANSTESS, John
and
OBLESCUK, Maria Lucille
v
CHIEF HEALTH OFFICER
and
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-03787-SC
DELIVERED: 11 April 2022
HEARING DATE: 28 March 2022
JUDGMENT OF: Brownhill J
CATCHWORDS:
CIVIL PROCEDURE – Costs – Protective costs order sought by Plaintiffs – Application for recoverable costs to be capped at $50,000 – Court has discretionary power to make protective costs order – Whether unfairness arising from cap being far less than costs likely to be incurred by other party – Whether Plaintiffs would be forced to discontinue proceedings if order not made – Whether sufficient public interest in the litigation to warrant making a protective costs order – Application dismissed.
Bare v Small (2013) 47 VR 255; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2009) 170 LGERA 22; Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864; Houston v New South Wales [2020] FCA 502; Northern Territory v Sangare (2019) 265 CLR 164; Oshlack v Richmond River Council (1998) 193 CLR 72, applied.
Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; Dibb v Avco Financial Services Ltd [2000] FCA 1785; Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107; R (British Union for the Abolition of Vivisection) v Secretary of State for the Home Department [2006] EWHC 250; R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749; R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600, referred to.
Northern Territory Supreme Court Act 1961 (Cth), s 18(1), 18(2)
Public and Environmental Health Act 2011 (NT), s 5(2), 52
Racial Discrimination Act 1975 (Cth), s 9(1), 10(1)
Supreme Court Act 1979 (NT), s 9(1), 14(1)(c), 71
Supreme Court Rules 1987 (NT), 1.10(1), 63.03(1), 63.04(1), 63.07(c)
REPRESENTATION:
Counsel:
Plaintiffs:J Burnside QC with K Roussos
Defendants:N Christrup SC with L Peattie
Solicitors:
Plaintiffs:Kelly & Partners
Defendants:Solicitor for the Northern Territory
Judgment category classification: C
Judgment ID Number: Bro2202
Number of pages: 28
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINPhillips & Ors v Chief Health Officer & Anor [2022] NTSC 29
No. 2021-03787-SC
BETWEEN:
RAY PHILLIPS
First Plaintiff
CONAN THOMAS HAMMETT
Second Plaintiff
JOHN ANSTESS
Third Plaintiff
MARIA LUCILLE OBLESCUK
Fourth Plaintiff
AND:
CHIEF HEALTH OFFICER
First Defendant
NORTHERN TERRITORY OF AUSTRALIA
Second Defendant
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 11 April 2022)
Procedural background
These proceedings were commenced by originating motion on 9 December 2021. The proceedings challenge the validity of the COVID-19 Directions (No 55) 2021: Directions for Mandatory Vaccination of Workers to Attend the Workplace made on 13 October 2021, as amended by the COVID-19 Directions (No 81) 2021: Amendments to COVID-19 Directions (No 55) 2021 made on 10 November 2021 (‘Directions’) made by the first defendant (‘Chief Health Officer’) under the Public and Environmental Health Act 2011 (NT) (‘Act’).
Essentially, the Directions prohibit a worker who is likely to come into contact with a vulnerable person in their workplace, or who is at risk of infection because they are likely to come into contact in their workplace with a person or thing that poses a risk of infection, or a worker who performs work necessary for the operation or maintenance of essential infrastructure or logistics, from attending their workplace unless they have been twice vaccinated against COVID-19 with an approved vaccination. A ‘vulnerable person’ is someone who is under 12 years old; who cannot be vaccinated with an approved vaccine due to a contraindication; who is Aboriginal; or who is at risk of severe illness from COVID-19 for medical reasons.
On 22 December 2021, the matter was listed for trial on 19 to 21 April 2022. Orders were made on that date programming the matter for trial. The hearing was tentatively extended by two days on 8 March 2022.
Initially, the challenge was made on five grounds essentially asserting jurisdictional error. Amendments were made to the originating motion on 14 December 2021 and 9 March 2022, and a further amendment to the originating motion was sought by summons filed on 15 March 2022. At the hearing of this application on 28 March 2022, an application seeking leave to make further amendments to the originating motion was foreshadowed in light of new directions made by the first defendant which will impose similar but additional requirements for mandatory vaccination of workers and revoke the Directions. Those new directions are to take effect on 22 April 2022.
By 4 March 2022, much of the evidence-in-chief, including expert evidence, had been filed and served or was due to be filed and served within two weeks or so.
On 4 March 2022, the plaintiffs applied for an order that, in the event that their application for judicial review is dismissed and costs follow the event, the defendants’ costs of the proceedings be fixed in the sum of $50,000. Such an order is commonly referred to as a ‘maximum costs order’ or a ‘protective costs order’. These reasons will adopt the latter term.
Relief sought
The originating motion in its current form seeks a declaration that the Directions are contrary to law and of no effect, and an order in the nature of certiorari ‘setting aside’ the Directions on eight grounds, essentially as follows.
(a)The Directions are ultra vires and beyond the powers of the Chief Health Officer under s 52 of the Act, which do not extend to the making of directions: (i) prohibiting an unvaccinated worker to attend their workplace; (ii) defining all Aboriginal persons as a person vulnerable to infection with COVID-19; or (iii) regulating all workers likely to come into contact with a vulnerable person in their work (Ground 1);
(b)The Directions, or parts thereof, are invalid because, in prohibiting an unvaccinated worker from attending their place of work, they are unreasonable or are ‘not reasonably proportionate to the empowering provisions of the Act’, on the basis: (i) of the availability to the Chief Health Officer of ‘less arbitrary, extreme and/or restrictive measures’ to alleviate the public health emergency; (ii) that the vaccines approved by the Chief Health Officer are not sufficiently effective against COVID-19 transmission; or (iii) that the distinction between vaccinated and unvaccinated people in the Directions ‘is not sufficiently effective’ to fall within the precondition for the exercise of the power in s 52 of the Act (Ground 2);
(c)In defining all Aboriginal people as vulnerable to infection from COVID-19 and regulating all workers likely to come into contact with a vulnerable person in their work, the Directions are ultra vires because they ‘alter, impart or detract from’[1] the provisions of the Act (Ground 3);
(d)In defining all Aboriginal people, all people under 12 years old, and all people who could not be vaccinated with an approved vaccine as vulnerable to infection with COVID-19 and regulating all workers likely to come into contact with vulnerable people in their work, the Directions are invalid because: (i) they are repugnant to the Act; (ii) they are unreasonable or irrational or illogical; or (iii) ‘not reasonably proportionate to the empowering provisions of the Act’ (Ground 4). There are 23 sub-grounds which include a failure by the Chief Health Officer to keep written records or document his analysis and decision making processes, and a failure to take into account various considerations.
(e)If the Directions are an otherwise valid exercise of the power in s 52 of the Act, then s 52 is invalid (thereby rendering the Directions invalid) because it delegates the legislative power of the Northern Territory legislature and abdicates that power, or the Directions are of a legislative character and are therefore in excess of the power conferred by the Act or the ‘scheme and provisions of the Act and the general law’ (Ground 5).
(f)The Directions are invalid because they are inconsistent with ss 9(1) or 10(1) of the Racial Discrimination Act 1975 (Cth) because they operate on Aboriginal people ‘so as to nullify or impair their human rights or fundamental freedoms’ or ‘remove a right that is enjoyed by other persons’ (Ground 6).
(g)The Directions are invalid because, in making them, the Chief Health Officer acted contrary to s 5(2) of the Act, which requires decision making to be guided by a careful evaluation to avoid, where practicable, serious harm to public health, and an assessment of the consequences of the options available with regard to the risk of each consequence occurring (Ground 7).
(h)The Directions are invalid because the condition precedent requiring the Chief Health Officer to consider the Directions necessary, appropriate or desirable to alleviate the public health emergency was not fulfilled (Ground 8). A particular of this ground is that the opinion was not formed ‘by a reasonable person who correctly understand [sic] the meaning of the law under which the person acts’.
Protective costs orders – the Court’s power
In other jurisdictions, the Supreme Court has express power to make protective costs orders.[2] There is no such express power conferred on the Supreme Court in this jurisdiction. Whether a court without any such express power may make protective costs orders does not appear to have been considered in Australia, but courts in England have accepted that a general discretion as to costs permits the making of a protective costs order.[3]
As the High Court set out in Northern Territory v Sangare,[4] this Court’s power to make orders about the costs of any proceeding is found in s 14(1)(c) of the Supreme Court Act 1979 (NT) (‘Territory Act’), which confers on the Supreme Court the jurisdiction held by ‘the former Supreme Court’. By s 9(1) of the Territory Act, ‘the former Supreme Court’ is the Supreme Court established by the Northern Territory Supreme Court Act 1961 (Cth). By s 18(1) and (2) of that Commonwealth Act, that Court’s jurisdiction included jurisdiction to award costs in all matters brought before the Court and provided that, subject to the Rules of Court, the costs of and incidental to all proceedings in the Supreme Court are in the discretion of the Court. By s 71 of the Territory Act, the practice and procedure of the Court is as provided by the Supreme Court Rules 1987 (NT) (‘Supreme Court Rules’). By s 9(1) of the Territory Act, ‘practice and procedure’ includes matters relating to costs.
Supreme Court Rule 63.03(1) provides that, subject to the Rules and any other law in force in the Territory, ‘the costs of a proceeding are in the discretion of the Court’. Supreme Court Rule 63.04(1) provides that the Court may exercise its power and discretion as to costs at any stage of a proceeding or after its conclusion. Supreme Court Rule 63.07(c) provides that, where the Court orders that costs be paid to a party, it may order that the party is entitled to a specified gross amount instead of taxed costs.
In Sangare, the High Court observed (at [24]) as follows:
It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation. While the width of the discretion ‘cannot be narrowed by a legal rule devised by the court to control its exercise’, the formulation of principles according to which the discretion should be exercised does not ‘constitute a fetter upon the discretion not intended by the legislature’. Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power. [citations omitted]
In the statutory context set out above, and cognisant of the breadth and nature of the Court’s discretion as to costs as described in Sangare, the discretion may be exercised before the proceedings are concluded so as to cap, by a specified amount, the costs that may be paid by the unsuccessful party. In other words, the Court has power, in its discretion, to make a protective costs order.
Both parties accepted this to be the case.
Protective costs orders – the Court’s discretion
In Sangare, the High Court held (at [25]) that one of the most, if not the most, important guiding principle by reference to which the discretion as to costs is to be exercised is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon them. The High Court held (at [27]) that, in point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party, and that consideration does not lose its compelling force simply because of the impecuniosity of the unsuccessful party, or a difference in the relative ‘wealth’ of the parties. The same was said (at [28]) about cases in which the successful party is a public authority.[5]
The High Court held (at [25]) that the application of the guiding principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. The High Court gave an additional example of modification or displacement of the guiding principle, noting (at [33]) the decision of the High Court in Oshlack. In that case, the High Court upheld the decision of the Land and Environment Court that there be no order as to costs in respect of the appellant’s unsuccessful challenge to the local authority’s consent to a development application because the litigation was motivated by a desire to ensure obedience to environmental law and to preserve the habitat of endangered fauna, meaning there was, objectively speaking, a public interest in the outcome of the litigation. The High Court in Sangare added (at [33]) that, in Oshlack, it was not unfair to require the local authority to bear its own costs where it had an interest in resolving uncertainty attending the valid exercise of its powers, and wide standing provisions facilitated the bringing of such litigation.
The observations in Sangare indicate that, to obtain an order which results in an outcome other than that the unsuccessful party pay the costs of the successful party, there must be something relating to the litigation that would justify a different outcome.
The Australian courts’ consideration of protective costs orders has been made against the backdrop of an express requirement for the courts to exercise the discretion to make such orders so as, for example, to: ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’;[6] ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’;[7] and ‘facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible’.[8]
A similar backdrop operates in this Court. Rule 1.10(1) of the Supreme Court Rules provides that, in exercising a power under Chapter 1 of the Rules (which includes Rule 63.03), the Court ‘shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined’.
It follows that the observations of Australian courts about the purpose of protective costs orders and the factors to be considered in the exercise of the discretion as to whether to make them are equally applicable in this Court.
There is no ‘test’ for the exercise of the discretion as to whether to make a protective costs order, in the sense of fixed criteria governing its exercise; rather, a range of non-exhaustive guiding factors have been identified by the courts, which may or may not be relevant to, and will have different importance in, any particular case, depending on its circumstances.[9]
Factors which have been identified by the courts include: (a) the timing of the application; (b) the nature of the relief sought; (c) the complexity of the factual or legal issues raised; (d) the interests of the parties in prosecuting and defending the litigation, including whether the applicant claims damages or some other form of financial compensation; (e) whether the applicant’s claims are arguable and not frivolous or vexatious; (f) whether the applicant would otherwise be forced to abandon the proceedings if the order is not made; (g) whether there is a public interest element to the case; (h) the costs likely to be incurred by the parties; (i) whether the opposing party has been uncooperative or delayed the proceeding; (j) the applicant’s ability to pay costs; and (k) any other matters that could go towards establishing that there should be a departure from the usual rule that costs follow the event.[10]
The purpose of a protective costs order is to facilitate access to justice, because access to justice is impeded where the cost of litigation is high.[11] Protective costs orders can facilitate access to justice in a number of different ways in different contexts. They may do so by limiting a party’s own legal costs to what is proportionate to the importance and complexity of the subject matter of the dispute.[12] In cases where the subject matter of a dispute is important, complex and of high value, significant expenditure on legal costs may, on the criterion of proportionality, be justified, but the fear of an adverse costs order may deter a party from asserting or continuing to assert its rights in litigation.[13] A protective costs order can facilitate access to justice by protecting the beneficiary of the order from exposure to legal costs beyond the amount specified in the order, thereby alleviating that fear.[14] A protective costs order can also curb the tendency of one or all parties to engage in excessive expenditure of legal costs by making it clear, at an early stage of the proceedings, that, beyond a certain limit, they will have to bear their own costs, win or lose.[15]
One category of litigation where the fear of an adverse costs order may impede access to justice is litigation in which there is a public interest in the outcome of the proceedings.[16] In such a case, a protective costs order may enable the litigation to continue, whereas if such order is not made, the ‘public interest plaintiff’ may discontinue the proceedings.[17] While the existence of a public interest in the determination of the issues is a factor of some significance, it is not decisive.[18]
Counsel for the plaintiffs argued that the likelihood (or not) of the plaintiffs being forced to abandon the proceedings was essentially irrelevant because other people also affected by the Directions might, if a protective costs order is not made in this case, be deterred from bringing proceedings challenging the validity of the Directions (or any directions made under the Act) and in that sense a protective costs order in these proceedings would facilitate that broader access to justice. Reliance was placed on the observations in Caroona (at [16]-[17]), where reference was made to disproportionality of legal costs, if it becomes commonplace in the justice system, impeding access to justice in other disputes between other parties.
There are a number of reasons to reject this argument. First, the reference in Caroona to proportionality of legal costs was a reference to a party’s own legal costs, and those general observations did not stand in the way of Preston J’s later observations (at [21], [23] and [25]) about the capacity of a protective costs order to alleviate the barrier of fear of exposure to an adverse costs order. Far from being considered irrelevant in that case, Preston J made observations (at [27]) about how not all public interest litigation will be discontinued in the absence of a protective costs order because the plaintiff may have access to financial resources sufficient to fund the litigation. His Honour concluded (at [62]) that access to justice would not be impeded, in this case, if the Court refused to make a protective costs order because the applicant did not claim that it would not continue with the proceedings without such an order, and the applicant was an incorporated association whose members were owners of land with high agricultural productivity who may be adversely affected by the proposed development, meaning there was a financial incentive for them to provide financial resources to the applicant to continue with the litigation.
On the other hand, courts in other cases have made a protective costs order after concluding that access to justice would be impeded if a protective costs order was not made because the plaintiff in the case would otherwise be deterred from continuing the proceedings.[19]
Secondly, counsel for the plaintiffs was unable to identify any authority in which the court had determined an application for a protective costs order by taking into account the effect of not making an order on persons who were not parties in relation to bringing other proceedings.
Thirdly, the argument is somewhat illogical. On the assumption (for the moment) that the plaintiffs will continue with these proceedings regardless of whether a protective costs order is made, this Court will determine the validity or otherwise of the Directions, and any declaration that the Directions are unlawful or invalid will have effect beyond the plaintiffs in this case. There will be no need for other plaintiffs to bring other proceedings to challenge the validity of the Directions, so the failure to make a protective costs order in these proceedings cannot have the effect of impeding the access to justice of those people. If some case is brought, the plaintiff(s) in that case can seek a protective costs order in their case to address their access to justice.
Finally, the task of this Court is to decide the application before it, on the evidence received and in the context of these proceedings, not by reference to an assertion about the effects of the Court’s decision on the attitudes or intentions of non-parties. As Preston J observed in Caroona (at [36]), the critical question in the end is whether or not making a protective costs order facilitates or impedes access to justice in the particular case.
Consideration of the application
The costs likely to be incurred by the parties
On the basis of the grounds asserted in the amended originating motion current at the time the application was heard, the defendants’ estimated costs of the proceedings to completion were $391,182, not including the costs of the defendants’ three expert witnesses.[20] The plaintiffs seek, by the protective costs order, to cap the costs available to the defendants if the plaintiffs are unsuccessful at $50,000. There is considerable disparity between the amount of the defendants’ likely costs and the cap. The plaintiffs’ offer to consent to a protective costs order made in reciprocal terms does not address that disparity, particularly where the plaintiffs’ estimated costs are almost half the defendants’ ($200,000).
Would the plaintiffs discontinue the proceedings?
The plaintiffs’ solicitor attested to the following matters.
(a)The plaintiffs have a strong willingness and desire to participate in these proceedings.[21]
(b)The plaintiffs’ legal fees and disbursements are being paid by way of donations from the public made to United NT Businesses Inc (‘UNTB’), all of which have been given on the basis that they are to pay the fees and disbursements of the plaintiffs and any adverse costs order made against them.[22]
(c)UNTB has indemnified each of the plaintiffs for the costs of the proceedings.[23]
(d)The plaintiffs are not making any contribution to their fees or disbursements.[24]
(e)UNTB transfers funds to the solicitor’s trust account as needed and, as at 2 March 2022, approximately $200,000 had been transferred.[25]
(f)UNTB’s fundraising efforts were continuing and it hoped to receive further donations to fund the proceedings.[26]
(g)As at 2 March 2022, the plaintiffs’ estimated costs of the proceedings to completion were $200,000.[27]
(h)If a protective costs order is not made, ‘it may well eventuate that the plaintiffs will seek to discontinue the proceedings, in light of the limited financial resources available from donations in this matter’.[28]
The President of UNTB attested to the following matters.
(a)On 2 November 2022, UNTB opened a bank account to receive donations to fund the proceedings.[29]
(b)Up to 15 March 2022, there had been 190 donations to the bank account ranging from $20 to $10,000.[30]
(c)UNTB has indemnified each of the plaintiffs against costs in the proceedings.[31]
The written agreements comprising the indemnities were put before the Court. Essentially, UNTB (as the Indemnifier) indemnifies each plaintiff (as the Indemnitee) against any and all claims and actions arising out of their participation in the activity of being a plaintiff in these proceedings, including against legal costs including an adverse costs order. The indemnities are subject to exceptions for amounts incurred as a result of the plaintiffs’ failure to act in good faith or in a reasonable manner; the plaintiffs engaging in wilful misconduct, or conduct which was knowingly fraudulent or deliberately dishonest; where the plaintiffs have received payment under an insurance policy or other indemnity; or where the proceedings were commenced without UNTB’s written consent. There was no suggestion that any such thing has occurred, or that UNTB’s consent was not given. The indemnities are unlimited as to amount, and continue for so long as the plaintiffs are subject to any possible claim or until terminated by mutual written agreement.
UNTB is a non-profit incorporated association with seven members and five committee members.[32]
Counsel for the plaintiffs argued that the indemnity may not effectively indemnify the plaintiffs against an adverse costs order. The argument was founded on the exception clause in the indemnity and the possibility that one or more of the plaintiffs might act in a way that would exclude UNTB’s liability. However, counsel for the plaintiff conceded that, in the absence of any evidence to suggest such a thing might happen, the Court could not decide this application on the assumption that the plaintiffs might so act.
I consider that there is no basis to find that the indemnities would not be legally effective to indemnify the plaintiffs against an adverse costs order in these proceedings. On the evidence before me, I find that they would be legally effective to indemnify the plaintiffs against an adverse costs order.
The evidence establishes that: (a) UNTB has raised at least $200,000 and paid that to the plaintiffs’ solicitor’s trust account; (b) that sum is sufficient to cover the estimated legal costs of the plaintiffs for the proceedings; and (c) UNTB’s fundraising efforts are ongoing. There is no evidence before the Court regarding UNTB’s assets, its capacity to pay the total legal costs the subject of the indemnities (which includes any adverse costs order), or the total amount of funds raised by it to date to do so. The plaintiffs have not put that evidence before the Court and their failure to do so in support of their application is unexplained.
Even if UNTB has not raised, and is unable to raise, funds sufficient to cover an adverse costs order against the plaintiffs, the plaintiffs are effectively indemnified against those costs. UNTB cannot revoke the indemnities without the plaintiffs’ agreement. Consequently, there is no basis on which to find that the plaintiffs would, or even might, discontinue the proceedings if a protective costs order is not made.
The plaintiffs’ application for a protective costs order is founded on there being a public interest in the outcome of the litigation.[33] Given the purpose of a protective costs order when the litigation is said to comprise public interest litigation, which is to ensure that the litigation is not discontinued because of the fear of an adverse costs order, the conclusion in paragraph [38] above is a very significant factor pointing against the making of a protective costs order. The need for the protective costs order to facilitate access to justice in this case is lacking.
In addition to the argument referred to in paragraph [24] above, the plaintiffs argued that there was a need for certainty as to the maximum costs that may be awarded against the plaintiffs so that donations can be raised accordingly.[34] In light of the evidence referred to in paragraph [31] above, the plaintiffs now have a reasonable indication of the likely magnitude of any adverse costs order against the plaintiff, which would be sufficient for the purposes of raising further donations. Consequently, I give this matter little weight.
Public interest litigation?
The following matters have been considered in deciding whether or not a proceeding can be characterised as ‘public interest litigation’:[35]
(a)the public interest served by the litigation;
(b)whether that interest is confined to a relatively small number of members concerned with their own private interests, or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant issue;
(c)whether the applicant sought to enforce public law obligations;
(d)whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and
(e)whether the applicant has no pecuniary interest in the outcome of the proceedings.
In Houston, Griffiths J held (at [26]-[29]) as follows:
It is also relevant to bear in mind that the proceedings are not to be characterised as public interest litigation merely because they involve ‘elements of public law or the judicial review of the exercise of executive power’…
While it may be accepted that persons other than the applicant may have an interest in whether or not the relevant legislation is valid, that of itself is insufficient to characterise the matter as involving public interest litigation.
An equally important factor is that it cannot be said that the applicant has no private interest in the proceeding. He currently faces criminal prosecution and, if his proceeding here is successful, he would avoid the financial consequences associated with prospective fines, remediation orders and/or conservation agreements that would follow from a conviction.
I accept … that it is not possible to characterise the ‘public interest’ nature of the litigation at a level of abstraction which is divorced from the particular claims raised by [the applicant] and their strength. The relevant question is not whether there is a segment of the community which continues to reject the legitimacy of the impugned legislation. Rather, the relevant question is whether there is a public interest in litigating what can reasonably be described as a broad and novel Constitutional challenge to the impugned State legislation, relying not only on an alleged limitation on Commonwealth power in the Constitution, but also on various alleged acts and arrangements between the Commonwealth and the State…
Counsel for the second defendant,[36] the Solicitor-General for the Northern Territory, conceded that at least three of the eight grounds of judicial review (grounds 1, 3 and 6) ‘may arguably’ raise questions of public importance, but argued that the ‘evidence-intensive (and therefore costly) grounds’ do not.[37] The argument was that determination of the breadth and scope of the Chief Health Officer’s powers under the Act, as a matter of statutory construction (including as constrained by the Racial Discrimination Act 1975 (Cth)), is a matter of general application which might be said to be in the public interest; however, determination of whether the particular exercise of that statutory power, being the making of the Directions, was unreasonable or irrational or illogical is not.
No authority was cited which suggests that the need for, or the volume of, evidence in determination of issues in the litigation bears on characterisation of the litigation as being in the public interest. The ground of unreasonableness/irrationality/illogicality in the making of an administrative decision (such as the making of the Directions) is as much a question about the breadth and scope of the Chief Health Officer’s statutory powers as the other grounds of jurisdictional error, albeit that the evidence before the decision maker must be considered.[38]
The public interest served by the litigation is the determination of the validity of the Directions, which apply in their terms to a large number of ‘workers’ in the Northern Territory. There is no evidence before the Court as to the number of workers in the Northern Territory who have not been vaccinated as provided by the Directions, and who have consequently been excluded from or restricted in their workplaces. It may reasonably be inferred, however, that there are a significant number of members of the public who are affected by the Directions.
For the first, second and third plaintiffs, their concern in the litigation is a purely private one – the choice between receiving vaccinations which they consider to be insufficiently tested or trialled and not attending their workplace.[39] For the fourth plaintiff, her concern in the litigation is also purely private – the adverse impacts upon her business of falling into the definition of ‘vulnerable person’ because she is Aboriginal.[40] The only evidence that any of the plaintiffs has a concern beyond their own private interests is given by the third plaintiff, who has now been vaccinated in order to keep his job, who attested that he considers himself to be ‘pro choice’ and does not believe anyone should be forced to be vaccinated to keep their jobs.[41] On the basis of the plaintiffs’ evidence considered as a whole, it is not possible to conclude that the prime motivation of the litigation is to uphold the public interest and the rule of law. Rather, that evidence establishes that the prime motivation of the litigation, for the plaintiffs, is their personal interests as impacted by the Directions, if valid.
The plaintiffs have no direct pecuniary interest in the outcome of the proceedings. Each has (or, in the case of the third plaintiff, had) attested to the losses of income they have suffered as a consequence of employment termination or reduction of hours or changes in business activity. There is no specific evidence as to whether a determination that the Directions are invalid would result in a return to their previous jobs or work or business activity, but that likelihood may be inferred given the prime motivation of the litigation for the plaintiffs found above.
The plaintiffs argued that the public interest character of the litigation can be inferred from the level of media attention given to the proceedings and the COVID-19 pandemic, the development of vaccines, and whether various kinds of workers should be vaccinated.[42] There is no suggestion in any of the authorities to which I was referred that ‘the public interest’ in the outcome of the litigation contemplates the curiosity, attention or concern of members of the public as gauged by the level of media reporting about the litigation or its subject matter. That is not relevant to the characterisation of the proceedings as ‘public interest litigation’.
Clearly, persons other than the plaintiffs may have an interest in whether or not the Directions are valid. That, of itself, is insufficient to characterise the proceedings as involving public interest litigation. The defendants also have an interest in whether or not the Directions are valid, but that must be insufficient for similar reasons.
At least some of the grounds for the relief sought by the plaintiff raise matters of public importance on the basis of what might be described as arguable and not frivolous or vexatious standard jurisdictional error grounds involving statutory construction of the power conferred by s 52 of the Act, and whether the effect of the Directions is racially discriminatory contrary to the Racial Discrimination Act. However, some of the other grounds involve extremely complex questions, with a substantial degree of repetition and overlap (ground 4 involves 22 particularised sub-grounds as well as the 23 particularised sub-grounds asserted in relation to grounds 1, 2 and 3, and grounds 5, 7 and 8 repeat the particulars to ground 4), directed to whether the power was exercised unreasonably/irrationally/illogically, and a number of novel bases are asserted in relation to that, such as those resting on questions of ‘proportionality’, whether the Chief Health Officer made records of his decision making process, and whether he is a reasonable person who correctly understands the meaning of the law. These grounds also assert numerous matters of evidence which appear, on their face at least, to seek some review of the merits of the decision(s) to make the Directions. For example, particular 2.2.5 of ground 2 asserts that the Directions are arbitrary in that the vaccines approved by the Chief Health Officer are ‘not sufficiently effective’ to be necessary, appropriate or desirable to alleviate the public health emergency, and particular 2.2.6 of ground 2 asserts that the distinction drawn in the Directions between vaccinated and unvaccinated persons is ‘not sufficiently effective’ to be necessary, appropriate or desirable to alleviate the public health emergency. Similarly, particular 4.9 of ground 4 asserts that the distinction drawn in the Directions between Aboriginal and non-Aboriginal people is ‘not sufficiently effective’ to be necessary, appropriate or desirable to alleviate the public health emergency, and ground 4.23 asserts that the Chief Health Officer relied upon the Therapeutic Goods Administration’s approval process, which did not assess the safety and effectiveness of the vaccine for mandatory vaccination.
In summary, the proceedings can reasonably be described as a very broad, extremely complex and, in some respects, novel administrative law challenge to the Directions. Taking into account this characterisation of the litigation and the matters referred to in paragraphs [45] to [50] above, it is doubtful whether there is a sufficient public interest in the proceedings to justify the making of a protective costs order.
Other factors
In all the circumstances of this case, none of the other factors referred to in paragraph [21] above, particularly those pressed by the parties, outweigh the three factors considered above. Those three factors all point against the making of a protective costs order, and do so with such weight that a departure from the usual rule as to costs (that the unsuccessful party pays the costs of the successful party), by the making of a protective costs order, is not justified.
Disposition
The plaintiffs’ application for a protective costs order is refused and the summonses seeking that order are dismissed.
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[1]I presume this is intended to say ‘impair’ rather than ‘impart’.
[2] See, for example, s 65C(2)(d), Civil Procedure Act 2010 (Vic), conferring a power to ‘fix or cap recoverable costs in advance’; Rule 42.4, Uniform Civil Procedure Rules 2005 (NSW), conferring a power to ‘specify the maximum costs that may be recovered by one party from another’; Rule 40.51, Federal Court Rules 2011 (Cth), conferring a power to specify ‘the maximum costs as between party and party that may be recovered for the proceeding’;
[3]See, for example, the decision of the English Court of Appeal in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 at [68], [74], and see also the English cases referred to at [44]-[52]. See also R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749; R (British Union for the Abolition of Vivisection) v Secretary of State for the Home Department [2006] EWHC 250; Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107.
[4]Northern Territory v Sangare (2019) 265 CLR 164 (‘Sangare’) at [12]-[15] per the Court.
[5]Citing Oshlack v Richmond River Council (1998) 193 CLR 72 (‘Oshlack’) at [92] per McHugh J.
[6]See s 65C(1) and s 7 of the Civil Procedure Act 2010 (Vic).
[7]See Rule 42.4 of the Uniform Civil Procedure Rules 2005 (NSW) and s 56 of the Civil Procedure Act 2005 (NSW).
[8]See Rule 40.51 of the Federal Court Rules 2011 (Cth) and s 37M(1) of the Federal Court of Australia Act 1976 (Cth).
[9]See Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2009) 170 LGERA 22 (‘Caroona’) at [36] per Preston J; Bare v Small (2013) 47 VR 255 (‘Bare v Small’) at [37] per Hansen and Tate JJA.
[10]See Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 (‘Corcoran’) at [6]-[7], [36] per Bennett J; Bare v Small at [29]; Houston v New South Wales [2020] FCA 502 (‘Houston’) at [17] per Griffiths J.
[11]See Caroona at [16], [21] per Preston J. See also the reference to ‘access to justice, public interest, and a desire to limit the costs of all parties’ in Houston at [19]-[20].
[12]See Caroona at [17]-[20].
[13]See Caroona at [21].
[14]Ibid.
[15]See Caroona at [22].
[16]See Caroona at [23]-[24].
[17]See Caroona at [25].
[18]See Corcoran at [45] per Bennett J, cited with approval in Houston at [23].
[19]See Bare v Small at [38], [46]; Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150 at [64], [69] per Pain J. See also Dibb v Avco Financial Services Ltd [2000] FCA 1785 at [16] per Sackville J.
[20]Fifth Affidavit of Jared Clow made 21 March 2022 (‘Clow Affidavit’), [7]-[26].
[21]Affidavit of Danial Kelly made 2 March 2022 (‘Kelly Affidavit’), [6].
[22]Kelly Affidavit, [7]-[8].
[23]Kelly Affidavit, [9].
[24]Kelly Affidavit, [10].
[25]Kelly Affidavit, [11]-[12].
[26]Kelly Affidavit, [14].
[27]Kelly Affidavit, [24].
[28]Kelly Affidavit, [33].
[29]Affidavit of Mario Tsirbas made 15 March 2022 (‘Tsirbas Affidavit’), [4].
[30]Tsirbas Affidavit, [6].
[31]Tsirbas Affidavit, [7].
[32]Clow Affidavit, Annexure JDC-22.
[33]See Protective Costs Order: The Plaintiffs’ Submissions, [12]-[20], [34
[34]See Protective Costs Order: The Plaintiffs’ Submissions, [11], [30(ii)].
[35]See Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [15] per Lloyd J, cited in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280 at [38]-[39] per Preston CJ and Delta at [202]. The considerations were there expressed in terms relating to proceedings challenging land development proposals. They are here expressed in terms relating to the subject matter of the proceedings.
[36]The first defendant abides by the decision of the Court on this application and did not seek to be heard.
[37]Second Defendant’s Written Submissions, [18].
[38]See the explanation of jurisdictional error in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [23]-[31] per Kiefel CJ, Gageler and Keane JJ and the explanation of the unreasonableness ground in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63]-[72], esp [67] per Hayne, Kiefel and Bell JJ.
[39]See the affidavits of the first plaintiff made on 9 December 2021, 2 February and 4 March 2022; the second plaintiff made on 9 December 2021 and 4 March 2022; the third plaintiff made on 9 December 2021 and 4 March 2022.
[40]See the affidavits of the fourth plaintiff made on 2 February and 4 March 2022.
[41]See the affidavit of the third plaintiff made on 4 March 2022, [4].
[42]See Protective Costs Order: The Plaintiffs’ Submissions, [16].
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