Thurs 11/06/2009 Brendan Sydes and Lucy McKernan, The Age Opinion
Let's protect the people who take on the powerful for our benefit.
IMAGINE devoting years to a cause you believe is in the best interests of your community, having the validity of your action shown by winning court cases against a powerful opponent, and then having that victory overturned on appeal on a technicality and facing losing not only all your assets but your job and prospects for the future.
That is the situation Senator Bob Brown now finds himself in. But he is not the first person to face this nor will he be the last unless changes are made to the law to protect those who take on issues in the public interest.
That Brown is facing potential eviction from the Senate for being unable to pay the costs of his unsuccessful legal battle against Forestry Tasmania — a company that made a net profit in 2007 of $14.6 million — highlights one of the major difficulties faced by private citizens and not-for-profit community organisations in using the courts to try to enforce environmental and other public interest laws in this country: having to pay the costs of the other side if you lose.
It is worth noting that the costs for which Brown is liable, totalling $239,368.52, do not represent the costs of the whole legal action in which he has been involved, just those of the five-day hearing before the full Federal Court (the only time costs were awarded against him).
Brown's situation is the most recent to make headlines and has a particular twist because being unable to pay this bill could force his resignation from the Senate. Last year, Blue Wedges, a community group representing the interests of environmentalists, small business owners and many others around Port Phillip Bay, was the subject of an adverse costs order far in excess of its ability to pay after it unsuccessfully challenged federal Environment Minister Peter Garrett's controversial decision to approve the channel-deepening project in Port Phillip Bay.
According to the judge, the case was public interest litigation and the pursuit of costs by the State and Federal governments and the Port of Melbourne Corporation was akin to seeking to squeeze blood out of a stone.
In April of last year, Lawyers for Forests was allowed to sue the same minister, when a judge ruled that poverty should not prevent litigation in the public interest. The association was unsuccessful at trial and costs were awarded against it. If an appeal is unsuccessful, it will be forced to close down.
These cases are simply high-profile examples of the kind of difficulties faced by community organisations every day in trying to ensure that government and business abide by both the letter and the spirit of the laws of this country.
As lawyers, we are required to warn our clients about the possibility of having to pay costs if they are unsuccessful in their claims. In many cases, the prospect of such an award is enough to ensure that they do not even try to enforce their rights. The public interest is not served by costs rules that are a disincentive to litigation of meritorious public interest cases.
The problem of costs is well known. The Australian Law Reform Commission highlighted it in 1995, and the Victorian Law Reform Commission did so again as part of its Civil Justice Review in 2007. Both federal Attorney-General Robert McClelland and state Attorney-General Rob Hulls have acknowledged that litigation costs raise serious issues about access to justice.
McClelland referred to the cost of taking legal action as horrendous and Hulls was reported as saying the question of costs needed to be urgently addressed.
The time has come to do this. Other jurisdictions, both within Australia and abroad, have shown the way. In Queensland, the Judicial Review Act 1991 can protect members of the public from adverse costs when they challenge government decisions on behalf of the public interest.
England, where our costs rules originate, has developed protective costs orders aimed at enhancing access to justice by protecting public interest litigants from adverse costs orders.
If attorneys-general McClelland and Hulls are serious about improving access to justice, and we have no doubt they are, the issue of costs in public interest cases must be dealt with.
Brendan Sydes is principal solicitor at Environment Defenders Office (Victoria), a community legal centre specialising in public interest environmental law, and Lucy McKernan is co-manager of the Public Interest Scheme at the Public Interest Law Clearing House.