The State of Western Australia v Collard

The State of Western Australia and another party (the appellants) appealed a decision made by the Supreme Court of Western Australia regarding costs in a case brought by the respondents, who sought damages for alleged breaches of fiduciary duty by the State during their time in the care of the Child Welfare Department. The respondents' claims were dismissed, and the primary judge ruled that there should be no order as to the costs of the action, considering the case to be in the nature of a 'test case'. The appellants challenged this decision, arguing that they should be awarded their costs due to their success in the case.

The key legal issues before the court involved the principles applicable to costs in 'test cases' and 'public interest litigation'. The court needed to determine whether the case was a 'test case' and, if so, whether the principles applicable to such cases would result in no order for costs. Additionally, the court had to consider whether the case could be characterized as 'public interest litigation', which might also affect the costs order.

The court reviewed the principles established in previous cases, such as Water Administration Ministerial Corporation v Mills, De Silva v Ruddock, and Geeveekay v Director of Consumer Affairs Victoria (No2), which indicated that while important legal questions may be involved, if the litigation is brought for the individual benefit of the applicant and not for the benefit of the public or to enforce a public duty, costs should follow the event. The court found that the respondents' action was not principally of a public interest character but was brought for their individual benefit. Consequently, the court ruled that the principles applicable to 'test cases' and 'public interest litigation' did not apply, and the appellants should be awarded their costs.

In conclusion, the court allowed the appeal and ordered that the respondents pay the costs of the appellants. This decision was based on the finding that the case was not a 'test case' in the relevant sense and did not involve public interest litigation, thus costs should follow the event in favour of the successful party.