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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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PUBLIC INTEREST LITIGATION

The Hon. R.L. BROKENSHIRE (16:46): I move:

That this council—

1. Calls upon the government to behave as a model litigant in public interest litigation, in particular, on the question of costs; and

2. Calls upon all litigants to bear in mind the public interest when a question of costs arises.

Public interest litigation is a developing trend in the western world and, although there are some decisions on the subject in the courts, there is not enough for community and other groups who might wish to run a public interest case. As the motion states, one area where we could do with some clarity from the legislature is on the question of costs.

The Supreme Court of South Australia has a wide jurisdiction to review any matter, including decisions by the government. The court can decline to review such decisions, but its doors are open at the consideration of a filing fee, I might add, to individuals and groups who wish to review those decisions. Family First does not support frivolous or vexatious public litigation cases. The government is elected to govern and it is not in the public interest for taxpayers' money to be bogged down in frivolous or vexatious cases that claim to be in the public interest. However, Family First does believe there are cases where a question is clearly in the public interest and in those cases you might have lawyers helping individuals or community groups pro bono—something lawyers do not talk about enough because they believe in the justice of the case at hand. In those circumstances, Family First is open minded on what sort of reform is necessary—perhaps the courts ought to be able to certify that on the question of costs it was a public interest case.

I am familiar with several cases pending or currently before South Australian courts that are clearly public interest cases. I do not want to jeopardise issues around them, so I will not go into all the specifics, but in the past some leading authorities on the issue include the landmark February 1998 High Court decision in the Oshlack v Richmond River Council case, which went some way towards resolving the question of how to deal with costs in public interest cases but left some uncertainty on the issue. The other was in May 1998 where High Court decisions given jointly on two cases were the South Australian West Forest Defence Foundation Incorporated and the Bridgetown Greenbushes Friends of the Forest Incorporated.

I will leave it to an appropriate time for colleagues of ours who have legal backgrounds, like the Hons Robert Lawson and Mark Parnell, to list other authorities if they feel so inclined, as I suspect the issue is of interest to them also. The court decisions on the subject can be swept aside by a government interested in setting the rules for public interest litigation, whether by an act or working with the courts to amend the Supreme Court rules to create clarity on the issue.

I know that some issues are sub judice, but it is relevant to refer to the case of the Cheltenham Park Residents Association (CPRA) against the government of South Australia, a case which the SAJC chose to join because the beneficial lucrative rezoning issues of Cheltenham were at stake. The court has made its decision now and the CPRA is on the public record saying it will not appeal. So costs is the only live issue. The rule of sub judice serves to protect the deliberations of a court, which this debate has nothing to do with but, rather, concerns the conduct of litigants in public interest cases such as the Cheltenham case.

You, Mr President, can give leave for deliberation of this case. I have references to Erskine May which show that leave can be given to discuss a particular case when it relates to ministerial decisions. That matter has been resolved and lost by the CPRA, and now the only live issue is the question of costs. In the Cheltenham case the residents have, unfortunately, lost and I believe will not appeal. Their case was a brave and important one and through the court they have not only acted in the public interest in fighting for an important issue but have brought to the fore a question of the court's discretion when it comes to ministerial decisions, and helped to contribute to the legal precedent on the issue. Others might choose to fight that precedent or try to distinguish it but, ignoring the future for the moment, it is my firm view that neither party—the government or the SAJC—should seek an order for costs against the CPRA.

I know there are arguments in concluding that there is protection when you are incorporated, but there also have been cases where there have been legal battles with respect to these matters, even though there has been incorporation. I am dealing with a constituent, an individual, at the moment who has been severely jeopardised, as have a number of other constituents who have purchased housing from government. This person is certainly raising their case as a litigant for their own circumstances, but it is still a public interest case and, whatever the outcome in the court, I encourage the government of the day to ensure that it looks at the facts in light of a public interest case and not a vexatious or frivolous case.

In closing, this motion calls on the council to support the concept of fair play. My colleagues will want to think about this for a while, but I encourage them to contribute if they feel so inclined. As I have said, it is clear that we are not talking here about frivolous or vexatious cases. If people want to set their mind at ease about that issue, we could amend the motion but, ultimately, I believe it is a motion about fair play and the public interest, both of which I support and I trust the council will give consideration to supporting. I commend the motion to the council.

Debate adjourned on motion of Hon. M. Parnell.

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