Oshlack v Richmond River Council [1998] HCA 11

High Court of Australia Brennan CJ Gaudron, McHugh, Gummow and Kirby JJ Oshlack v Richmond River Council (S208/1996) [1998] HCA 11

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the New South Wales Court of Appeal and in lieu thereof, order that the appeal to that Court be dismissed with costs.

Cur adv vult

The following written judgments were delivered:—

25 February 1998 Brennan CJ.

1. Costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party. In Latoudis v Casey [1] Mason CJ said that "in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant". In that case, the litigation concerned the enforcement of the criminal law, a subject in which the public has a considerable interest. Yet costs were ordered in favour of a successful defendant against a police officer who, in the course of his duty, instituted a prosecution of the defendant in the Magistrates Court of Victoria.

1. (1990) 170 CLR 534 at 542.

2. The present case concerns the administration of the Environmental Planning and Assessment Act 1979 NSW, a subject in which the public has a considerable interest. But the public interest in the administration of that Act is no greater than the public interest in the enforcement of the criminal law. My dissent in Latoudis v Casey acknowledged that the police officer was serving the public interest, not his own [2] . Just as the police officer's serving of the public interest did not lead the Court to refuse costs to the successful defendant in that case, the fact that the appellant brought the present proceedings in the public interest for the protection of endangered fauna does not provide a sufficient reason by itself for refusing the successful respondent its costs in the present case. To do so would be to depart from the principle laid down in Latoudis v Casey .