Roe 8: what costs orders should be made?

On 1 November 2016, the Court of Appeal of the Supreme Court of Western Australia delivered its decision regarding the costs orders for the “Roe 8 Saga”: the application made by Save Beeliar Wetlands (Inc) and others to quash the decision of the Environmental Protection Authority (EPA) to recommend to the Minister that a proposal to extend the Roe Highway (Proposal) be implemented.

The decision addresses the circumstances in which an unsuccessful ‘public interest’ litigant, such as Save Beeliar Wetlands (Inc) and other respondents in this case (the Respondents), will be liable to pay the costs of the successful party or parties.

The argument

It was contended by the Respondents that the Court should depart from the usual order that a successful party is entitled to its costs on the basis that the proceedings were in the “public interest”.  The circumstances which were said by the Respondents to justify a departure on “public interest” grounds were, in summary, that:

1. the Respondents had commenced the proceedings to protect critical environmental assets and to clarify the proper administration of the Environmental Protection Act 1986 (WA); and
2. the Respondents stood to derive no personal, private or financial gain from the proceedings.

The decision

Buss and Newnes JJA, in their joint majority judgment, found that simply describing the case as “public interest litigation” served no purpose.  The Court must consider whether “special circumstances” exist justifying a departure from the usual cost order, which involves a balancing exercise.

In reaching the decision, it was found to be significant that some of the Respondents stood to obtain some private benefit from the Minister reconsidering the proposal.  Of the 100 members of Save Beeliar Wetlands (Inc), 31 lived within close proximity of the Roe 8 development envelope.  Another party also lived within 20 to 25 metres of the area effected by the Proposal. 

Their Honours affirmed the principle that litigants espousing a public interest are not, ordinarily, granted an immunity from costs or a ‘free kick’.  Accordingly, the Minister, EPA and Commissioner of Main Roads were entitled to their costs from the Respondents.

Key takeaways – costs orders for public interest litigants

Parties defending ‘public interest’ proceedings can take some comfort from the decision that, in the event they are successful, a Court in the usual course will offer some protection in the form of a costs order made in their favour.

Individuals or organisations, however well-intentioned, who embark upon litigation to pursue objectives in the public interest cannot in every instance expect to be relieved of the cost risks involved in the litigation if their pursuit is unsuccessful, particularly where there is evidence of possible personal gain from the outcome of proceedings.