FEDERAL COURT OF AUSTRALIA

Physical Disability Council of NSW v Sydney City Council [1999] FCA 815

COSTS - application that costs ought not follow the event - public interest litigation - claimed that litigation resolved significant issues of interpretation and future administration of legislative provisions of public concern - additional element not shown - comparative capacity to pay irrelevant

Disability Discrimination Act (Cth) 1992,  s 23

Oshlack v Richmond River Council (1998) 152 ALR 83, distinguished

PHYSICAL DISABILITY COUNCIL OF NSW v SYDNEY CITY COUNCIL & ORS

N 84 OF 1999

MADGWICK

19 FEBRUARY 1999

SYDNEY

THE COURT ORDERS THAT:

1.             The proceedings are dismissed.

2.             The applicant is to pay the costs of the first respondent. 

REASONS FOR JUDGMENT

(revised from transcript)

1                     In this matter I declined to grant an interlocutory injunction the aim of which was to preserve, until the final hearing of a case before me, a certain pedestrian bridge in the North Western sector of Sydney central business district.  The proceedings, as finally constituted before me, took the nature of an application for review of a decision by the Human Rights and Equal Opportunity Commission (HREOC) not to grant an interim determination on a complaint made to it by the present applicant that would have had the effect of preserving that bridge pending a full investigation of the complaint by HREOC. 

2                     I indicated in my short and urgent ex tempore reasons for refusing the interlocutory injunction that, while there was an arguable case that the Commission had viewed its power to issue interim determinations too narrowly, it was nevertheless unlikely that HREOC would be persuaded, even if it viewed the matter more broadly, to require restorative action which would put the bridge back in a useable condition.  It had already been made unusable by the time the matter came before me (although its fabric was still mainly intact). 

3                     I also thought that the balance of convenience was against the Court intervening on an interim basis because, to do so would undoubtedly cause some expense to the respondent Council.  Further, the prospect of the Court ordering final relief of a kind that would justify the making of the interim injunction as sought before me did not seem to be strong.  This was because the bridge was probably not going to last very long in any case due to circumstances outside the scope of the present litigation. 

4                     It seemed to me likely that a broader and more far reaching approach to the amelioration of wheelchair bound or frail people could likely be achieved by way of discussions between the parties than anything that might occur in relation to the bridge alone, and that the presence of the bridge should not be seen in isolation from the problems of reasonably convenient access for physically disabled people to the central business district of the city at large. 

5                     I have now been told that the applicant does not wish further to pursue the action before me and that, in response to a suggestion I made, the Commission has arranged conciliation between the parties as a matter of some priority

6                     All that remains for determination by this Court is the question of costs.  The respondent council seeks its costs according to the ordinary rule for exercise of the discretion of the Court that costs follow the event. 

7                     The applicant resists such costs on the grounds that this case constitutes public interest litigation.  It relied upon the decision of Oshlack v Richmond River Council (1998) 152 ALR 83.  That case proposed that the traditional rule that costs follow the event should continue to apply.  However, if proceedings can properly be characterised as public interest litigation, the prime motivation of which is the upholding of the public interest in the rule of law, that may be a factor which contributes to a finding that there are special circumstances justifying a departure from the traditional rule.  It was also made clear by this decision that the characterisation of proceedings in that way is not alone enough to warrant such departure.  Something more is required.  That additional quality or requirement may be met by its being shown that the unsuccessful moving party had an arguable case and that the case had raised and resolved significant issues as to the interpretation and future administration of a statute

dealing with matters of public interest and concern, which has practical implications for relevant sections of the public and for private persons. 

8                     The applicant contends that the circumstances of this case fall within that description of what may amount to the additional requirement and contends that it is beyond question that this is public interest litigation.  It is argued that these proceedings were brought by the applicant in good faith, in genuinely urgent circumstances, and in a state of belief about relevant facts, of which it was only disabused in the course of the proceedings before me, and in a state of belief, though not induced by the respondent, nevertheless, reasonably arrived at.

9                     It is said that important issues were involved.  These included: the nature of the tests which HREOC should apply in considering whether a case for an interim determination has been made out; the extent of the obligation under the Disability Discrimination Act 1992 in relation to a body, such as the respondent city council, to provide undiscriminatory access; and the applicability of the undue hardship provisions of s 23, where a means of access is not being provided but is being removed.  These are indeed interesting and important issues and in the main, the position of the applicant in relation to them was arguable.  Nevertheless, it seems to me that the overall prospects of success in relation to the proceedings in this court, ought to have been assessed as little better than speculative.  The applicant should therefore have known that it was proceeding, albeit in relation to important and urgent matters, at risk of a costs order.  The decision in Oshlack does not say and, in my opinion, it is not the law that in every case of public interest litigation, where there are significant issues involved, a party who brings proceedings as to a matter of public interest may do so with impunity as to costs, if there is an arguable case. It seems to me that the reasonably perceived strength of the applicant's case, the time of institution of the proceedings and the manner in which the matter proceeds must also be considered. 

10                 I am not satisfied that the required additional element has been sufficiently shown to displace the ordinary rule and accordingly I will order that the applicant pay the cost of the first respondent.  The second respondent does not seek any such order. 

11                  It was also contended before me on behalf of the applicant that the respondent City Council, having a large revenue base, as the local government council for Australia's largest city, had a much better capacity to absorb the cost of litigation than the applicant which is a voluntary organisation of modest means, having as members under 200 individuals and approximately 50 physical disabilities organisations and various governmental, semi-governmental and non-governmental agencies, including the New South Wales Council of Social Services. The organisations are all charitable, all concerned with important and worthy objectives, and all respectable ones.  The principal source of funding of the applicant is a State government grant and its resources are quite modest.  It is said that if, at the end of the day, costs must be met from the public purse, that compartment of that purse which is better stuffed, should be the compartment from which the costs come. 

12                  This is little more than an appeal to comparative capacity to pay.  However sympathetic one may personally be to arguments of this kind the legal position is clear that, except in extraordinary cases, regard is not to be had to such capacity.  It is a matter for political decision whether unequal capacity to engage in litigation is to be assuaged by legal aid and if so, to what extent. There is nothing sufficiently extraordinary about the circumstance of this case to enable me to take into account the parties unequal capacities to pay. 

13                  The proceedings are dismissed.  The applicant is to pay the costs of the first respondent. 

Associate:

Dated:              19 February 1999