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KELLIE EDWARDS [*]
The court’s discretion at common law to award costs against the unsuccessful party and/or to require litigants to provide security before substantive litigation commences, ‘serves as a formidable barrier to litigants who are bringing an environmental action in the public interest’.[2]
[r]elaxing the traditional requirements for standing may be of little significance unless other procedural reforms are made. Particularly is this so in the area of funding of environmental litigation and the awarding of costs. There is little point in opening doors to the courts if litigants cannot afford to come in. The general rule that “costs follow the event” is in point. The fear, if unsuccessful, of having to pay the costs of the other side (often a government instrumentality or a wealthy corporation), with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of cases to court. In any event it will be a factor that looms large in any consideration to initiate litigation.[4]
In the past, the Land and Environment Court in New South Wales has provided some relief to public interest litigants by not requiring security for costs.[5] Further, as Stein J indicated in the trial decision of Oshlack,[6] there has been a development of principles in regard to costs orders in the context of ‘public interest litigation’ in Australia.[7] However, despite the decision by the High Court in Oshlack,[8] which upheld Justice Stein’s order that the public interest litigant in that case would be excused from a costs order, subsequent decisions[9] must dispel any illusions that public interest litigants may have been granted the kind of procedural reform spoken of by Justice Toohey.
In this context, the decision in Oshlack can be perhaps best characterised as raising more issues than it resolves. As authority it appears questionable, given the three to two split as regards the decision, as well as a split in the reasoning by the majority[10] which often overlapped with reasoning of McHugh J in dissent. Key issues raised by the decision include: whether issues attendant on costs may be treated in the same way as the courts have addressed issues of standing; the role and function of public participation in the environmental law process; and the appropriateness of a civil and criminal law dichotomy in the context of an indistinct public-private law distinction in environmental law.
The High Court’s decision in Oshlack[11] has been characterised by some commentators[12] as authority for allowing the court to advert to a concept of ‘public interest litigation’ in making a determination as to costs.[13] In Oshlack, the High Court allowed an appeal against a decision of the New South Wales Court of Appeal[14] upholding a costs order made in the Land and Environment Court of NSW.[15] The trial judge, Stein J, took several issues into account in exercising a discretion as to costs:[16]
(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 between the nature of private commercial litigation and of applications to enforce ‘public law obligations’ which arise under environmental laws lest the relaxation of standing by s123 have little significance.[17]
(ii) The characterisation of proceedings as ‘public interest litigation’ with a ‘prime motivation’ being the upholding of ‘the public interest and the rule of law’, may contribute to a finding of ‘special circumstances’ but is not, of itself, enough to constitute special circumstances warranting a departure from the ‘usual rule’; something more is required.[18]
(iii)The appellant’s pursuit of the litigation, motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala. Also the appellant had nothing to gain from the litigation ‘other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna.’[19]
(iv)Whether ‘a significant number of members of the public’ shared the stance of the appellant as to the development to take place on the site, and the preservation of the natural features and flora of the site. In that sense there was a ‘public interest’ in the outcome of the litigation.[20]
(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; these issues had implications for the council, developer and the public.[21]
It was by taking these factors into account that Stein J held that there were ‘sufficient special circumstances to justify a departure from the ordinary rule as to costs.’[22] On appeal, it was held that the trial judge erred in taking into account irrelevant considerations (ie, the above regime in regard to ‘public interest litigation’) and also in failing to conform to the High Court’s decision in Latoudis v Casey.[23] One would have expected that a further appeal would deal with these issues as they were framed and argued, yet, to a large extent, they were not.
The rule in Latoudis provided the basis for the Court of Appeal in NSW to overturn the original decision as to costs by Stein J in the Land and Environment Court (LEC). As Gaudron and Gummow JJ state:
the members of the Court of Appeal ... regarded Latoudis as authority for the proposition that the award of costs to a successful party in civil litigation is made not to punish the unsuccessful party but to compensate the successful party against which that party has been put by reason of the legal proceedings.[24]
Gaudron and Gummow JJ then proceed to distinguish Latoudis from Oshlack on the basis that Latoudis dealt with ‘costs in the summary jurisdiction of the court and this litigation has no concern with that provision.’[25] They then assert that:
[t]he true issue here is not whether this was “public interest litigation” ... the question is whether the subject matter, and scope of section 69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be ‘definitely extraneous to any objects the legislature could have had in view’ in enacting section 69.[26]
However, as Bates noted in regard to the Court of Appeal’s decision, it would be an:
illogical conclusion that whereas public purpose and the public interest is a relevant consideration in decision-making and law enforcement under the EP& A Act, it is irrelevant to the exercise of a judicial discretion to award costs arising out of proceedings brought under the Act.[27]
Yet, by focusing narrowly on the scope and purpose of section 69 of the LECA, Gaudron and Gummow JJ did not decide whether a principle related to ‘public interest litigation’ must be adverted to when exercising a discretion to order costs. Instead, they stated that it ‘tends, in this litigation to distract attention away from the legal issue which is at stake.’[28] That is, they limited their discussion of ‘public interest litigation’ to the principle in Latoudis, though it is clear that Stein J and those on the bench of the Court of Appeal[29] addressed the issue in regard to both Latoudis and the legislative framework of the Environmental Planning Assessment Act 1979 (NSW) (EPAA). Indeed, as Kirby J noted,[30] Clarke JA made it clear that were it not for his understanding of the requirements of Latoudis he might have come to a different view. Further, Clarke JA suggested that the Court of Appeal would ‘in the future, be required to consider whether such a consideration is of relevance in the light of legislative changes in the law, such as open standing provisions.’[31] Certainly, it appears difficult to decide the subject matter and scope of section 69 without looking to concepts of ‘public interest’ within the context of the EPAA and the LECA. As Kirby J notes, section 123 of the EPAA ‘is one of a number of provisions designed to increase the rights of access to the law and the courts of persons having a particular interest in, and commitment to, environmental concerns.’[32] As such it represents:
a parliamentary conclusion that it is in the public interest that such individuals and groups should be able to engage the jurisdiction of the Land and Environment Court, although they have no personal, financial or like interest to do so. The removal of the barrier to standing might amount to an empty gesture if the public character of an applicant’s proceedings could in no circumstances be taken into account in disposing of the costs of such proceedings, either where they succeeded or ... where they failed.[33]
Gaudron and Gummow JJ further demonstrate their reluctance to engage with a holistic interpretation of the EPAA and the LECA by rejecting the proposition of Street CJ in F Hannan Pty Ltd v Electricity Commission of NSW (No 3),[34] ‘that the task of the court in proceeding under section 123 is to “administer social justice” and that this “travels far beyond administering justice inter parties”’.[35] They do so without explanation. In context, this quote from Street CJ[36] provides a more precise account of the approach to be taken to section 123 which Kirby J interprets broadly as indicating ‘the need to adapt the decisions of the court so as not to frustrate the achievement of the purposes of parliament’.[37]
Stein J did not refer to Latoudis, and as Kirby J points out,[38] neither did several appellate courts ‘in post-Latoudis public interest cases where costs have been considered’.[39] Kirby J states that, ‘[t]his does not necessarily betoken oversight. It is simply a recognition of the comparatively narrow and special point which Latoudis decides’.[40] He goes on to argue that Latoudis was the culmination of a history of conflict of legal authority which had arisen in several Australian jurisdictions, concerning the approach to be taken to a discretion, conferred by legislation upon courts of summary jurisdiction, to award costs in criminal proceedings terminated in favour of the defendant. Further:
[i]t emerged during argument in Latoudis that, notwithstanding the amendment of the Victorian legislation to permit orders for costs, the approach of the magistrates had remained resistant to such orders. Such resistance was thought to arise from the nature of criminal proceedings “which are brought, not for private ends, but for public purposes”.[41]
Put another way, the legislative framework[42] in Latoudis was being read down by lower courts, making it effectively inoperable, thus leading to the successful challenge of such approaches in the High Court. At this level, Latoudis must be contrasted with Oshlack[43] where it appears that the approach discarded in Latoudis (ie, reading the legislation down) is applied in Oshlack. That is, the legislative framework of the EPAA which was developed to improve public participation in decision making processes,[44] is ignored in favour of a construction of section 69 of the LECA that is discussed only in relation to Latoudis. As Kirby J asserts, in this context:
appellate courts should avoid the imposition of rigid requirements which would gloss the statute and narrow the discretion afforded to donees of the statutory power, they retain a function to guide those who are obliged to exercise cost discretions ... The proper approach to the exercise of a statutory discretion may be illuminated by the particular language in which it is expressed and the purpose for which it has been provided.[45]
Gaudron and Gummow JJ agree that ‘rigid requirements’ would be irrelevant to the discretion under section 69.[46] However, they do so within a general discussion of the development of principles in regard to costs[47] without reference to the EPAA, except to say that, ‘the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation’.[48] Concluding their decision, they rejected the council’s submission that section 123 did not indicate legislative intent to vary the ordinary costs rule,[49] but neither do they find that there was such a legislative intent. Rather they find that:
[i]t is ... not a question of fixing upon any hardened ‘rule’ derived from other descendants of the Judicature legislation and asking whether, in proceedings under section 123 of the EPA Act, the powers of the court with respect to costs are conferred by section 69 of the Court Act indicate a legislative intention to vary that rule.[50]
They simply found that the factors adverted to by Stein J could not be said to be ‘definitely extraneous’.[51] That is, they refuse to address the question of what may be taken into account when exercising the discretion. Justice Kirby however, asserts that to hold that Stein J’s approach marks a retreat from Latoudis is to misunderstand what Latoudis is authority for. That is, Latoudis:
says nothing about exceptional or special circumstances which warrant a departure from the general rule ... Public interest litigation is just one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule. The possibility of such a departure cannot be denied, given the breadth of the statutory language in which the discretion is expressed.[52]
That is, Kirby J argues, in effect, that Latoudis is applied in Oshlack but as authority for a wider position than that advocated by McHugh J.[53] Like Kirby J, McHugh J upholds Latoudis; however, he prefers the narrow view adopted by the Court of Appeal. Because of this, his analysis of what might constitute ‘public interest litigation’ and how it might be applied, reinforces his finding that costs should follow the event. This is in line with his own approach in Latoudis, which Kirby J asserts was ‘a stricter test’[54] and as such ‘attracted the attention of the Court of Appeal’.[55] McHugh J contextualises the discretion regarding costs within a public law framework covering both civil and criminal law. Thus he reasons that the principles in Latoudis are ‘analogous to those supporting the exercise of the costs discretion in civil cases’.[56] However, in doing this he decontextualises the discretion in relation to the legislative framework from which it came,[57] and as such gives it an operation not predicated on parliamentary purpose.[58] Justice McHugh’s approach can be said to characterise an approach to the law predicated on liberal individualist notions of litigation which provide little room for concepts of community outside of an economic framework. This is to be contrasted with Kirby J’s approach which recognises that:
the provision in the Land and Environment Court Act as to costs appears in a statutory context which alters, to some extent, the assumptions upon which civil litigation in this country has hitherto, ordinarily, taken place. Instead of a purely adversarial contest between two parties having individual, and typically financial, interests to advance, parliament has envisaged that, in some cases at least, the contestants will be ranged as they were in these proceedings: on the one side an individual or representative body seeking to uphold one perception of the public interest and the requirements of environmental law; on the other side, a local government authority seeking to uphold another.[59]
There is a link (between standing and costs) and the link is that in giving effect to the statutory policy, it is in effect, inconsistent and undermining of that statutory policy if one fails to take into account ... the way in which costs may operate as a disincentive to persons pursuing their mandate under the open standing provisions. To say that it is an irrelevant consideration ... is simply not in accordance with the unfettered discretion in relation to costs which is vested in the court.[60]
In the above statement, Mr Basten QC articulated a strong link between open standing provisions and costs. He does so specifically in the context of a regulatory framework which provides a structure for public participation under the EPAA. How the court responded to this illustrates a stark divergence of opinion. Gaudron and Gummow JJ[61] all chose to deal with the concept of ‘public interest litigation’ only in so far as it was relevant (or not) to an application of Latoudis.[63] In contrast, Kirby J dealt with the concept, as it had been argued in the lower courts, in relation to the statutory framework from which it had come. In order for Gaudron, Gummow and McHugh JJ to take this approach, issues related to costs had to be characterised as separate and distinct from issues related to standing requirements (or lack thereof) as defined by the legislative framework of the EPAA. However, this approach is inconsistent with applying principles, which used to be applied to deciding issues of standing (ie, where there were not open standing provisions in legislation), to decisions on costs discretions. Yet Gaudron and Gummow JJ’s judgment leave this approach open, while McHugh J takes it to its full extent, stating:
[l]arge scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.[64]
Brennan CJ[65] states simply that ‘[c]osts are awarded to indemnify a successful party, not by way of punishment of an unsuccessful party’.[66] Further, he states that although the public has a ‘considerable interest’[67] in the administration of the EPAA, that interest is no greater than the public interest in the enforcement of the criminal law. Thus, the decision in Latoudis allowed the successful defendant to gain costs, even though the policeman was acting in the public interest. By focusing on costs separate from issues of standing within the legislative framework provided by the EPAA, Brennan CJ also privileges a common law approach to standing in exercising a discretion as to costs. That is, this approach decontextualises the operation of one part of a piece of legislation, effectively severing it from the body of legislation it was a part of and thus its function therein.[68] Unlike Gaudron and Gummow JJ and the minority, Kirby J accepts Mr Basten’s argument[69] that there is a link between standing and costs orders in terms of ensuring the public interest within a particular legislative framework. Or, more specifically, he decides that the link between standing and costs is to be understood via an analysis of the legislative framework from which it comes. He states:
... the council was heard to argue that Stein J had erred in the way in which he characterised the litigation, its public purpose, its arguability, the seriousness and the significance of the issues raised and the appellant’s objectives in pursuing it. In my view no challenge is open to such findings ... Within those opinions, it was unsurprising that his Honour should have classified these proceedings as having been brought in the public interest. More precisely, that public interest was of the kind which section 123 of the EPAA permitted and facilitated. As such it was open to Stein J to conclude that a departure from the ordinary compensatory rule was appropriate in the circumstances.[70]
He does so by contextualising the development of the discretion of the court to award costs historically[71] As Stein J has noted,[73] with approval by Kirby J:
[t]he fact is that 14 years’ of experience of open standing provisions in the Land and Environment Court has produced little more than a modest flow barely wetting the judicial wellies.[74]
On this issue McHugh J asserts that:
[t]he reason for the irrelevance of the ‘public interest’ factor is not primarily the fear of a floodgate of claims by applicants ... . Nor is the reason some misconception of the court’s wide jurisdiction to award costs in circumstances where justice demands they be awarded in favour of or against a particular person. Rather, it is because any departure from the usual order by reference to the motives or conduct of the unsuccessful party would typically, if not invariably, work an injustice on the successful party.[75]
In this way, McHugh J treats the discretion to make costs orders in the same way as standing issues have been treated, that is, according to the ‘motives or conduct’ of the applicant.[76] In this context, Kirby J states that, ‘[t]he issue is not the motivation of the litigant but the public or private character of the litigation’.[77] That is, he argues that the public or private character of the litigation is important according to the ambit it is given by the legislative framework.[78] As the above discussion demonstrates, the costs discretion in Oshlack was functionally separated from the legislative framework from which it came, thus limiting the operation of the public interest/participation provisions of the EPAA.[79] At the same time, the costs discretion was treated as conceptually similar to issues raised by restricted standing; the reasons given for rejecting a public interest criterion as to costs reflected the policy positions in the case law as to restricted standing. This allowed the application of the old standing principles to costs, not only in Oshlack but later cases.[80]
For example, the appellant was described as someone who ‘actively promotes environmental causes’.[81] This characterisation is in line with an interpretation that allows the courts to reject the claims of a person who cannot demonstrate a special interest, only a mere emotional interest.[82] As Gibbs CJ states:
an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[83]
In this way the policy concerns of the courts, previously articulated in regard to standing, are being imported into decisions in regard to costs. The problems associated with importing standing analyses into costs analyses, are similar if not the same as those already identified in relation to common law standing requirements. Certainly:
In practice, questions of standing are often brushed aside if a court considers that the issue of substance should in the public interest be settled, particularly if it seems clear that the plaintiff will lose on the merits. Often, however, where a plaintiff seeks to have litigated an issue which is awkward because it questions dominant social institutions or relationships, standing looms large.[84]
Apart from any issues associated with the interpretation given to the EPAA in Oshlack, the problem with treating issues related to costs in the same way as those relating to standing is that while the tests for standing may have been liberalised, ‘there has been no correlative development of underlying principles to support the new approaches’.[85]
As Murphy J pointed out,[86] standing is not so much settled on the basis of unbiased principle (there is no such thing) as a direct engagement with the policies of the day informed by an emotional attachment to the status quo. That is, just as judicial approaches to standing privilege material, economic ‘attachments’ to litigation over ‘mere emotional attachments’, the approach of Brennan CJ, Gaudron, Gummow, and McHugh JJ in Oshlack similarly privileges the capacity to demonstrate a material or economic involvement. This approach is problematic, both for standing and for costs as is demonstrated by the cases on standing which betray a lack of cohesive theoretical approaches to support the rules.[87] Instead, what is required is an analysis of standing as it applies to public interest litigation, or an analysis of the presumptions which underpin the law as a discipline which, through an organisation of practices (such as the case law on standing), act to limit particular discourses.[88]
The principles applied to standing result from the historical development of the law dealing primarily with protecting private interests, as demonstrated by the early tests for standing relying on a private rights model.[89] That is, the law in Australia, has been predicated on the white Western philosophical tradition which privileges rationality[90] and the rights of the individual and individual ownership[91] above, and often to the exclusion of, collectively held social principles which do not relate to material ownership.[92] Thus the case law on standing demonstrates a basic structural weakness of the law in Australia (and elsewhere) in addressing collective, or what are often termed public interest issues, as opposed to questions of individual legal rights. For the above reasons this imbalance has provided the legal rights attendant on standing to be decided more often in favour of those with interests approximating private law interests except where legislation overrides issues of standing.[93]
All members of the court in Oshlack agreed that the term ‘public interest litigation’ was difficult to define.[94] In the absence of guidance from the EPAA and perhaps international law, it is not surprising that Gaudron and Gummow JJ chose not to address this issue. Likewise, McHugh J did not define the term or advert to the legislation, but asserted that:
there is a real danger that, by invoking the ‘public interest litigation’ factor in cases that affect the public interest or involve a public authority, an award of costs will depend on nothing more than the social preferences of the judge ... masked by reliance on the protean concept of public interest litigation.[95]
These approaches are to be contrasted with that taken by Kirby J. While acknowledging the difficulties attendant in defining the term, he stated that:
[g]iven that statutory context and the clear purpose of Parliament to permit and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible.96
He then defines public interest litigation as relating to the public character of litigation not the motivation of the litigant[97] which is evidenced by: properly bringing proceedings to advance a public interest; that proceedings contribute to the proper understanding of the law in question; and have involved no private gain.[98] These factors are not dissimilar (though less numerous) than Stein J’s and are predicated on case law highlighted by Stein J (and approved by Kirby J) from around the world.
Certainly defining this concept is problematic. However, to ignore the phenomenon is to ignore the significant developments and improvements to environmental management, gained through the efforts of individuals and groups litigating in the ‘public interest’, under new legislative frameworks which supported such action.[99] As Durbach states:
the scope for ventilation of matters of legitimate public concern and public declaration in support of accountability is a vital task for the courts and other public entities charged with finding legal resolution for infringement of social rights.100
In this context, the key to a better understanding of environmental litigation is in recognising the social, or collective rights, inherent in environmental law.
The key area in which judges have sought to define public interest litigation has been in standing. As Stein points out,[101] important questions are raised about the principles applied to determine standing, when lack of standing precludes consideration of an illegal action which may otherwise go without redress.[102] Further, traditional ‘interest requirements’ which allow standing are fundamentally challenged by the task of defining what constitutes public interest. For example, in socialist legal systems the subject matter of civil litigation does not have private law aspects as all disputes involve matters of public and social interest.[103] Another approach to defining the public interest is as ‘juridiction de droit objectif’ and ‘juridiction de droit subjectif.’[104] The former provides the judiciary with the role of protector of the public interest by control of the executive and legislative functions of government; the latter emphasises the interference by executive and legislative branches of government with individual rights.[105] What is needed, particularly in the context of environmental legislation, is an approach which integrates these approaches (ie, private individual rights and public group rights) rather than treats them as mutually exclusive.[106]
Of key concern in regard to standing, is the pattern of successful public interest litigation, which has tended to occur in the environmental area, favouring peak, government recognised organisations. This effectively means that the threshold for showing an established interest in the area has been set higher for individuals.[107] If costs are to be treated in the same fashion, it will be even more difficult for individuals to address environmental wrongs, particularly in the context of shrinking public funds.[108]
Certainly, as the above discussion demonstrates, a great number of writers have asserted that the issue of standing should be reconsidered.[109] In the context of Oshlack and subsequent cases,[110] where it appears that principles applied to costs orders have been imported from traditional standing requirements, the same arguments hold true. As Allars notes:
(A) standing test which has its origins in the hypothetical question as to who would have had title to sue had this been a private law action for damages, is inappropriate in a public law context .... The reformulation of the standing test in the ACF case leaves the process of adaptation incomplete ... (it) ... retains a link between standing and remedies .... But this idea makes little sense when the applicant represents the interests of a sector of the public. Success in the action may not in any practical way enure to the benefit of an individual who represents the public interest ... [111]
Certainly there is a concept of ‘public interest litigation’ in Australia though it is limited to a very few cases and occurs primarily in regard to environmental[112] and work related issues. The challenge for democracies such as Australia is to define and balance individual rights against the collective, which requires an appropriate discourse above and beyond ideas of special interest which still privilege material/ proprietary rights over social rights and responsibilities. Just as standing is only ‘one device among other forms of control over administrative power’,[113] the discretion in regard to costs is another. Just as open standing can be justified by reference to democratic theory and participatory government practices,[114] so should the discretion as to costs; particularly within legislative frameworks which espouse public participation.
A further issue is whether it is procedurally fair to treat public interest litigation in the same way as litigation affecting private interests. The nature of public interest litigation often means delays in the hearing process. As Joyce notes:
public interest litigants often need more time to prepare a case than that required by private business litigants. Not only is there a greater likelihood that those who have a property interest in proceedings will be more adequately informed of the proposed development, but public interest litigants may also experience difficulty in obtaining the relevant information necessary to prepare a case in the prescribed time.115
This may, of itself lead to increased costs associated with public interest litigation, not associated with other kinds of litigation. An example of the kind of time delay public interest litigants may face, occurred in the case of Oshlack v Iron Gates Pty Ltd,[116] where an application for an injunction was initially hindered by Richmond River Council’s refusal to provide the Environmental Defender’s Office with a copy of development consent, even though it was required by law to do so.[117] Such delays add to the costs of both sides and work to the disadvantage of public interest litigants. It is interesting to note that the High Court’s final decision in regard to costs did not mention this, though it could well have fallen into the traditional rule that ‘the successful party will be deprived of costs only by disentitling conduct’.[118]
Certainly it is true that these kinds of delaying tactics are used in private disputes; however, these tactics have a different effect in litigation where a person or group is litigating an issue in which they are not protecting a personal or private right. Unlike those litigating the protection of private business interests, those litigating issues of public interest do not usually have the resource base to support or sustain such litigation, and when they raise the funds to do so, they do not stand to gain from the exercise in the way private business interests do. The very fact that public interest litigants often have to raise the funds to mount a legal challenge already acts as a barrier to this kind of litigation. Yet, McHugh J still argued that:
[a]s a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved.[119]
Both the civil and criminal law belong to what may broadly be termed public law, while private law is considered to be law concerned with the protection of private legal interests, such as contract law. Increasingly this distinction is difficult to sustain, particularly in the context of environmental litigation where civil and criminal sanctions exist along the same continuum, a continuum which directly affects rights traditionally dealt with under private law approaches. In this context, it is important to recognise that:
(p)ossessive individualism - the relationship that links the individual to property as formulated in Locke’s labor theory of value – increasingly dominates the language and the logic of political claims to cultural autonomy.[120]
As Sperling notes, ‘recent legal developments support the view that private rights are now firmly in the ascendency’.[121] This may be seen in McHugh J’s statement that:
I can see no justification in legal principle or in social justice for depriving a successful litigant of his or her costs simply because that person was unlucky enough to get caught up in ‘public interest litigation’.122
In this context, the kinds of rights attributed to owners of property, whose rights are challenged within the environmental law context, provide a narrative[123] that may be read as a description of the kind of people we are (or people judges think we should be). In the dominant paradigm, property rights in regard to things are an extension of our individual freedom in a Lockean sense,[124] and as such are defined by our ‘nature’. That is why McHugh J characterises the person caught up in public interest litigation as ‘unlucky’: their freedom is being interfered with in an unnatural fashion. Therein lies the rub. A great preponderance of liberal philosophy states that people are ‘naturally’ territorial, acquisitive and egoistic.[125] Despite forays into interdisciplinary analyses which may or may not prove otherwise,[126] this view remains pervasive. Part of the reason why is the way in which such views are embedded in various discourses (including the law). That is, many current conceptions of ‘property’ are placed within a seldom articulated discursive framework which privileges the discourses of economics within the guise of ‘the law’ and ‘legal theory’ as if they are immutable Platonic truths. Despite modern theorists’ recognition that ‘property has fragmented into a set of discontinuous usages’,[127] modern debate has reproduced the dominant discourses around liberalism and capitalism by refusing to engage with other discourses – regardless of how the dominant discourses have changed.[128] The person described by McHugh J is someone pursuing their liberty through property acquisition: that is our natural state. Within this discursive framework it is seen as unnatural to not want to pursue these kinds of freedom – or indeed challenge them.
In this context, the question is not whether we should have, at the foundation of the notion of property, a utilitarian theory, a libertarian theory or a labor theory;[129] or an anti-property position. Nor is it solved by saying each of these approaches have equal weight; because ‘in some circumstances[130] one should be subordinated to the other’.[131] Indeed the reduction of this analysis to such dichotomous positions reflects more the competitive discourse of capitalism, rather than a search for meaning within a socially complex paradigm of value. Further it does not address the position of each of these approaches within our society. For this reason:
[i]t was ... foreseeable, desirable ... that studies of deconstructive style should end up on the problematic of law ... (as) the founding and justifying moment that institutes law implies performative force, which is always an interpretive force ...[132]
In this context:
[o]nce one accepts that language and discourse, as lived and embodied experience, are ways of making the world, and that all such “makings” are relative, made from some specific position, and therefore not sacrosanct as truth, fact, objectivity, then it also becomes possible to see ways of changing those “makings” ... To do this you have to change the language ... the fundamental semantic structures and oppositions that structure texts and the kinds of narratives that they embody about social realities, social relations and cultural structures.[133]
Where the project of traditional approaches in regard to establishing some coherent concept of property turns on the identification of, and competition between, the public and private – read government and private enterprise, respectively – the work of Foucault and Derrida,[134] as well as feminist critiques such as Pateman’s,[135] identify the public and private as corresponding to (respectively): male/female; culture/nature; civilised/uncivilised; one/other; visible/invisible and so on.[136] In this context, the simplistic traditional approach, while engaging in discussion around political rights regarding property, obscures a multiplicity of other discourses. In its most exclusive[137] form it represents the hegemonic process of polemics.[138] Thus the instant example: the resistance to identifying public interest litigation in environmental law is not surprising, given its history of protecting the private rights of owners of property.[139]
We need to balance economic discourses against other discourses, such as ‘the public interest’ which is a prerequisite for the operation of environmental law. This would require the balancing of social capital[140] against economic capital which has dominated concepts of ourselves, our bodies and our relationships with others and things.
Decisions subsequent to Oshlack[141] including those in the same jurisdiction,[142] have specifically rejected the ‘public interest litigation’ consideration, as stated by Stein J and modified by Kirby J. Further, they have also perpetuated the importation of standing requirements when regarding costs discretion, into areas where standing requirements have been broadened.
The Federal Court deferred judgment as to costs in Hinchinbrook so that the Court’s discretion in this respect could be guided by the High Court’s response to much the same question in Oshlack. On handing down the decision in Hinchinbrook, the court stated:
it is important to observe the question with which the High Court was concerned.
This was not whether, in a category of litigation described as ‘public interest litigation’, an unsuccessful challenger should on that account be relieved of the ordinary consequence of a costs order in favour of the party challenged, but whether the Court of Appeal had been entitled to disturb the exercise of discretion of the trial judge in that particular case ... Accordingly, the majority decision of the High Court does not lay down a rule for application in other cases in the making of costs orders. It affirms the width of the discretion conferred upon a court in relation to costs, with reference to the specially wide discretion it held to exist under the legislation with which Oshlack v Richmond River Council was concerned.[143]
To this end, the Full Federal Court asserted that the joint judgment of Gummow and Gaudron JJ contained no suggestion that their Honours intended to modify in any way the view on public interest litigation espoused by Gummow J in Council of the Municipality of Botany[144] based on a passage in the Australian Conservation Foundation concluding:[145]
[i]f a body was set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event that claims made against them prove unfounded.
This is problematic given that Gaudron and Gummow JJ did not specifically advert to ACF or Botany in Oshlack. Rather, they limited their decision to the extent of the costs discretion, albeit outside of the EPAA framework. Under this approach it was feasible that public interest litigation was a relevant consideration in Hinchinbrook. Justice Kirby’s view would have required a different approach. Of the three requirements described by Kirby J, the requirement that a public interest litigant bring proceedings that ‘contribute to the proper understanding of the law in question’,[146] would have required a ruling as to whether public interest litigants were entitled to carry on an appeal on substantially unchanged legal grounds. This did not occur. Indeed the approach taken by the Full Federal Court did not appear to deviate from their position on costs loosely articulated at the end of the appeal,[147] though they deferred judgment until after Oshlack was handed down. Nonetheless, the decision in Oshlack has been characterised as a principle relating to the proper exercise of the statutory discretion to award costs, independent of the legislative framework which has provided for changes to standing. Hinchinbrook in particular, shows how the courts have discounted ‘public interest litigation’ as a factor to be considered in the discretion to award costs by treating it as outside its legislative framework and as analogous to standing.
Justice Northrop, in a hearing of the full court, said in his judgment that ‘the object of the appellant was to prevent or delay the proposed works’.[148] This demonstrates the characterisation of public interest litigation as interfering with liberal individualist concepts of freedom (being inextricably linked with economics and property), rather than upholding public values regarding the environment in accordance with relevant legislation.
Timbarra took a slightly more faithful approach to Gaudron and Gummow JJ’s approach in deciding on the basis of the discretion under section 69. However, the court went on to quote ACF (just as the Full Federal Court did in Hinchinbrook)[149] and proceeded to further narrow the application of Stein J’s factors by characterising those features identified by him in Oshlack, as ‘unique’.[150] This was despite a recognition that ‘there was a wide divergence of opinion’[151] in the High Court. On this basis costs were awarded against the applicant. These cases demonstrate a questionable application of the decision in Oshlack, as well as a willingness to narrow down the discretion in section 69 – exactly what the majority in Oshlack found to be the wrong approach.
In 1998, the issue of ‘public interest litigation’ was argued again before the High Court in South West Forest.[152] The majority ordered, ‘the costs ... should follow the event’,[153] the applicant being ordered to pay the respondent’s costs. Importantly, agreeing with the orders, Kirby J, reiterated his position in Oshlack stating:
[o]ne of the particular considerations in Oshlack which led to the confirmation of Stein J’s order ... was the existence in that case of special legislation in New South Wales facilitating an ‘increased opportunity for public involvement and participation in environmental planning and assessment’ and enlarging standing rules to permit that to be done. No such legislation existed in the present case ... I see no basis to depart from the ordinary rule.[154]
The divergences of opinion in Oshlack revolve around approaches to statutory interpretation. For Kirby J, this meant recognising the influence of a substantial change in the legislative framework, a change mirrored in other NSW legislation (see above discussion). Justices Gaudron and Gummow approached the issues by restricting the operation of Latoudis in regard to a specific piece of legislation and then addressing the legislation as to costs within a limited historical framework. Justice McHugh assessed the two legislative frameworks[155] as not requiring separate interpretations, and as such applied Latoudis to both. To have such a divergence of approaches must reveal some level of ambiguity in the related legislation. In this context, the application of international legal principles may have been of assistance in arriving at a more coherent ratio. Specifically, adverting to customary international environmental law principles may have provided a basis within which to prioritise the EPAA and the LECA as the relevant legislative frameworks, with reference to international conventions and agreements now evidenced in Australian municipal law.[156]
When seeking to identify state practice relevant to customary law, legal opinions, policies, and decisions of municipal courts are relevant. As Justice Brennan J states:
[a]rticles 38 (1) of the Statute of the ICJ is generally regarded as a complete statement of the sources of international law ... In the absence of international conventions, the custom required to the evidence ‘a general practice accepted as law’ must be ‘extensive and virtually uniform.’
In Victoria v the Commonwealth,[157] Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ stated:
[c]ustomary international law requires both uniformity or consistency of state practice as well as an acceptance by those states that they are bound to so act. It is not enough that states act in a uniform manner if in so doing they see themselves as not acting out of a sense of legal obligation but from motives of fairness, courtesy and morality.[158]
As Stein and Kirby JJ’s respective analyses of the law in regard to the discretion of costs reveal, there is not only consistency in decisions but regular notice taken of what must be termed customary international legal principles related to ecologically sustainable development,[159] such as the precautionary principle.[160] In regard to Oshlack, the ambiguity attendant on interpretations of the legislative framework as to costs discretion could have been resolved so as to accord with customary international law.[161] This would have required that costs be dealt with, not only within the legislative framework that provided for open standing, but also by interpreting that legislation in line with ESD principles, particularly those relating to increased public participation.
It is well settled that costs have their historical basis in equity.[162] Specifically, McHugh J states that exceptions[163] to the usual order as to costs ‘typically feature a trust fund or property which will readily satisfy benevolent cost orders’.[164] Gaudron and Gummow JJ concur,[165] as does Kirby J who states:
a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have usually been described as incidental to the proper exercise of public administration. Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant ... The approach just described is not entirely dissimilar to that long taken in courts of equity in cases in which trustees and other litigants in a special position, who have properly brought a matter before a court, are spared costs orders against themselves personally. (Footnotes omitted).[166]
The concept of the trust is very important in environmental law. The concept of ‘ecologically sustainable development’ (ESD), which had its origins in the Brundtland Report,[167] was defined as being ‘able to meet the needs of the present without compromising the ability of future generations to meet their own needs’.[168] Inherent in these conceptions of ESD are the concepts of intergenerational equity, the precautionary principle and public participation. As Edith Brown Weiss puts it:
[a]t any given time, each generation is both a custodian or trustee of the planet for future generations and a beneficiary of its fruits. This imposes obligations upon us to care for the planet and gives us certain rights to use it ...[169]
Indeed,
[s]ustainability is possible only if we look at the Earth and its resources not only as an investment opportunity but as a trust ... [170]
ESD has been widely implemented in Australian legislation,[171] regulations[172] Likewise, there has been a shift in the case law.[174] Given the importance of sustainable development in international instruments,[175] the commensurate integration of ESD principles into Australian law, and the very recent need to develop a coherent set of principles in regard to costs orders in the context of open standing provisions, it would appear appropriate to advert to a trust model.
Oshlack and subsequent cases, such as Hinchinbrook, appear to indicate that in cases where legislation provides some degree of open standing, the traditional principles related to standing applied to costs orders and/or the ‘public interest’ factors, defined by Stein J and modified by Kirby J, will be narrowed down and given little, if any, operation. This approach is problematic for the same reasons articulated in some of the case law and writing in regard to standing, which have recommended more open approaches to standing requirements, or more open legislative provisions, and subsequently achieved that change.[176] Thus, it would appear to be inconsistent with approaches to statutory interpretation, particularly in the context of international law. What is required is the development of a more principled approach to costs orders in public interest litigation, particularly given that, ‘[i]n the environmental field ... it is more often the public interest which is under threat than the interests of particular individuals’.[177] This would require: greater attention to the legislative framework within which costs orders are to be made;[178] adverting to international legal principles, where appropriate, to inform the interpretation of municipal environmental law, which is often the result of international treaties and agreements;[179] and making use of principles of costs orders relating to trusts.[180] The development of principles which allow the apportionment of costs in public interest litigation according to trusts would reflect the legislative frameworks at both the state[181] which are premised on providing legislative effect to principles of ESD.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1999/27.html