Why protective costs orders? There is a need to reduce the barriers to meritorious public interest litigation. This report examines a number of different approaches to the award of costs in public interest litigation; their usefulness; and the options for their implementation in public interest litigation under the EPBC Act.
This paper examines a number of different approaches to the award of costs in public interest litigation, these approaches' usefulness in facilitating such litigation and the options for their implementation in public interest litigation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The default costs rule in common law jurisdictions such as Australia, Canada, and England and Wales is that the successful party receives costs from the unsuccessful party. Although this rule appears ‘intuitively attractive’, because of its apparent fairness and equality, in reality it is not always tenable or fair, particularly where there is genuine uncertainty about interpretation of a statute and the losing party had good legal grounds for making their claim.
In addition, it is likely that the rule discourages claims wherever the applicant would not be able to cope with the impact of an adverse costs order, regardless of their merit. This ‘deterrence’ effect is likely to be particularly pronounced where the potential applicant has no financial or personal interest in the proceedings, as is usually the case with public interest litigants.
In the context of the EPBC Act, public interest applicants are likely to be community organisations or other non-governmental organisations (NGOs) with limited financial resources to fall back on. For the reasons outlined above,the ordinary rule as to costs is particularly likely to deter them from bringing cases, whether meritorious or not.
In recognition of the difficulties faced by applicants with limited means, different approaches have been adopted in different jurisdictions to cap or shift costs. However, the rules currently available in the Federal jurisdiction in Australia do not provide adequate protection for public interest litigants.
There is a need to reduce the barriers to meritorious public interest litigation under the EPBC Act and provide more certainty for both parties.
View report Costing the Earth?(PDF, 369KB)