By Thomas Bagley -
Snapshot
- Two recent Federal Court decisions – McNickle v Huntsman Chemical Company Australia Pty Ltd (Costs) and Munkara v Santos NA Barossa Pty Ltd (No 5) – have illustrated the dynamic judicial approach to costs in public interest litigation.
- The contrasting judgments reflect departures from the orthodox rule that costs follow the event and pose interesting questions for the role of public interest litigation in the legal system.
- This article discusses these cases and reflects on the judicial balancing act when simultaneously ensuring access to justice and meeting the adversarial demands of litigation.
Public interest litigation continues to raise challenging questions about access to justice. It is increasingly common for third parties to participate in the funding of public interest litigation, especially in class actions, due to its undeniable appeal for achieving substantive social change through binding legal decisions. As such, the growing relevance of third-party contributions to public interest litigation displaces the traditional centre and periphery of party-to-party litigation, where the general presumption is that the successful party will be awarded costs against the unsuccessful party (Oshlack v Richmond River Council (1998) HCA 11 (‘Oshlack’) at [67]). The ordinary result being that costs follow the event (Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 20 at [13]).
This article discusses the evolving landscape of costs in public interest litigation with reference to two recent cases in the Federal Court of Australia: McNickle v Huntsman Chemical Company Australia Pty Ltd (Costs) [2024] FCA 883 (‘McNickle’) and Munkara v Santos NA Barossa Pty Ltd (No 5) [2024] FCA 717 (‘Munkara No 5’). Through these cases, this article considers how the courts are approaching the need to balance between ensuring access to justice and meeting the adversarial demands of litigation with respect to costs.
