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

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 84 OF 1999

BETWEEN: PHYSICAL DISABILITY COUNCIL OF NEW SOUTH WALES

Applicant

AND: SYDNEY CITY COUNCIL

First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent

JUDGE: MADGWICK

DATE OF ORDER: 19 FEBRUARY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The proceedings are dismissed. 2. The applicant is to pay the costs of the first respondent.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 84 OF 1999

BETWEEN: PHYSICAL DISABILITY COUNCIL OF NEW SOUTH WALES

Applicant

AND: SYDNEY CITY COUNCIL

First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent

JUDGE: MADGWICK

DATE: 19 FEBRUARY 1999

PLACE: SYDNEY

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