Court makes Protective Costs Order to reduce barriers to public interest litigation

Bare v Small [2013] VSCA 204 (9 August 2013)

Summary

The Victorian Court of Appeal granted an application for a Protective Costs Order (PCO) brought by Mr Nassir Bare. Mr Bare had brought an appeal against the orders of Williams J in the Victorian Supreme Court and applied for a PCO to limit his liability to pay costs in the event that the appeal was unsuccessful. The Court granted an order limiting recoverable costs to $5,000, following submissions by Youthlaw that they would be able to raise this amount to support Mr Bare’s appeal.

Facts

In the Supreme Court, Williams J had dismissed an application for judicial review brought by Mr Bare against a decision of the Office of Police Integrity (OPI) not to investigate an allegation of police misconduct.

Mr Bare had complained to the Director alleging that he had been assaulted and racially abused by officers of Victoria Police. The OPI (now the Independent Broad-based Anti-corruption Committee) decided not to accept the matter for investigation. Instead Mr Bare was advised that the complaint should be referred to Victoria Police.

At the heart of the judicial review proceeding was Mr Bare's claim that he had a right under section 10(b) of the Charter of Human Rights and Responsibilities (the Charter) to have his complaint investigated by a body independent of Victoria Police. Mr Bare argued that section 10(b) of the Charter (the right to freedom from cruel, inhuman or degrading treatment) generated a positive duty on the State to conduct "effective independent investigations" into complaints of such treatment. He argued that the decisions taken by the OPI delegates were unlawful because they were incompatible with human rights in contravention of section 38 of the Charter.

In the proceeding before the Supreme Court, Williams J held that although acts or decisions of public authorities that are incompatible with human rights are unlawful, this did not mean that they involved jurisdictional error or were thereby invalid. This meant that the decisions of the delegates were within the scope of the privative clause in section 109(1) of the Police Integrity Act 2008 which served to prohibit judicial review. Mr Bare sought to appeal that decision, but first lodged an application for a PCO to limit any costs order against him if he were to be unsuccessful.

Decision

Based on its review of the relevant sections of the Civil Procedure Act 2010, the Supreme Court Act 1986 and the Supreme Court Rules, the Court held that it had a discretionary power to fix or cap a party’s liability for costs in advance of an appeal, if it considered such an order to be appropriate to further the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.

The Court held that a PCO would advance the overarching purpose, as it found that the most likely, if not inevitable, result of a refusal to grant a PCO would be that the appeal would be abandoned. As the appeal would raise questions of public importance, a PCO was held to be appropriate to ensure a just determination of the proceeding.

In reviewing the relevant authorities (including Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864) the Court stated that although the considerations relevant to the grant of a PCO in Corcoran constituted a range of factors which guide the exercise of the Court's discretion, they were not a "test" and were not exhaustive.

In arriving at its decision, the Court considered the following factors:

If his application for a PCO was to fail, Mr Bare would discontinue his appeal as, if an adverse costs order was made against him, it would likely bankrupt him.

Mr Bare had, unsuccessfully, attempted to reach agreement with the respondents not to seek costs in the event that the appeal was dismissed.

The application for a PCO was made in a timely and efficient fashion at the first opportunity. The parties were not forced to incur substantial costs by preparing for an appeal that may be abandoned.

Mr Bare was not seeking damages in the appeal.

The appeal raised questions of law of public importance.

Mr Bare’s claims were arguable and not frivolous or vexatious.

Commentary

This decision evidences judicial support for potential plaintiffs bringing public interest cases where they might otherwise refrain from doing so because of the financial consequences of an adverse costs order.

The risk of unsuccessful litigants being ordered to pay the other sides' legal costs is often a significant barrier to public interest litigation. This decision may serve to reduce the significance of this barrier.

The decision also gives guidance to potential applicants as to the factors a court will consider in connection with a request to grant a PCO and confirms that there is not at this time an exhaustive list of criteria which must be satisfied before a PCO will be granted. Rather, the Court will consider what is required in the circumstances to achieve the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.

Mr Bare's appeal has the potential to raise substantive issues about the nature of the rights protected in the Charter and in particular whether the right to freedom from cruel, inhuman or degrading treatment includes a right to have complaints of police misconduct investigated by an independent body.

The decision is available at: http://www.austlii.edu.au/au/cases/vic/VSCA/2013/204.html

Peter Brennan is a Law Graduate at Allens.