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Pro bono: justice for all

Every Issue

Cite as: (2008) 82(12) LIJ, p.80

By PILCH supports the implementation of protective costs orders.

In a recent speech to the Judicial Conference of Australia, federal Attorney-General Robert McClelland said “[j]ustice should be available for everyone, not merely for those who can afford to participate in protracted litigation”.

The Public Interest Law Clearing House (PILCH) considers that this is none more so than in the case of public interest litigation.

In its role as a pro bono legal referral service for public interest cases, PILCH has observed that many meritorious public interest matters are not ultimately pursued because of the risk of an adverse costs order.

In this way, the costs regime acts as a disincentive to public interest litigation, particularly for marginalised and disadvantaged people. The problem is heightened where novel or untested issues arise, such that legal advisers are not able to advise with certainty on the likely outcome of litigation.

The Victorian Law Reform1 and Australian Law Reform Commissions2 have recognised that the risk of adverse costs orders is a significant deterrent to public interest litigation and have recommended the removal of such costs barriers.

The costs barrier operates as a limitation on the right to access to and equality before the courts, contained in ss8 and 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).3

For example, PILCH is aware of a matter in which an elderly woman with an acquired brain injury had a strong discrimination and administrative law claim in respect of a failure to provide adequate medical treatment. Proceedings were not instituted by the person’s guardian, appointed under the Guardianship and Administration Act 1986, because the guardian was concerned about her exposure to costs, for which a guardian may be personally liable under the Act.

Courts in other jurisdictions have been prepared to make orders protecting public interest litigants against adverse costs orders. The orders are described as “protective costs orders” (PCOs) and may include orders that a party will not be exposed to an order for costs if it loses at trial; the amount of costs that a party will be required to pay if it loses at trial will be capped at a certain amount; or there will be no order for costs whatever the outcome of the trial.

The leading decision on PCOs is R (Corner House Research) v Secretary of State for Trade and Industry,4 where the England & Wales Court of Appeal set out the principles governing the award of PCOs.5 Those principles are:

  • the issues raised are of public interest and require determination by the court;
  • the applicant has no private interest in the outcome of the case;
  • it is fair and just, having regard to the resources of the parties and the costs likely to be incurred; and
  • the applicant will probably discontinue the proceedings if the order is not made, and will be acting reasonably in doing so.

Australia does not have any specific public interest costs regime. In Oshlack v Richmond River Council6 the High Court indicated that in exceptional cases it may be appropriate to make no order as to costs. However, Justice Kirby was the only judge who made express reference to public interest considerations.

PILCH is not aware of any reported case in which a Victorian court has made a PCO on the basis of public interest considerations. The Federal Court of Australia has made “no costs” orders, but these are very rare.7

Former High Court Chief Justice Murray Gleeson once said: “the cost of civil justice is the greatest blot on the common law system”. Given the obvious benefits of PCOs, and the lack of Australian jurisprudence in this regard, PILCH believes that the legislature should intervene and confirm the courts’ jurisdiction to make PCOs and clarify what factors are relevant to the discretion to make such an order in public interest matters.

Such intervention will significantly improve access to justice for marginalised and disadvantaged Victorians with meritorious public interest cases and is necessary to fulfil and promote the rights contained in ss8 and 24 of the Charter.

Looking to help?

To facilitate lawyers and firms becoming involved in pro bono work other than legal services, the LIJ will profile a community group and its needs each month.

Name of group Centre for Sustainability Leadership
Contact person Joshua E. Chralowicz, Chief Operations Officer

Brief description of work of group

The Centre for Sustainability Leadership (CSL) gathers together people who see the possibilities for a better world and provides them with the tools and skills to make it happen. It empowers sustainability leaders with training and networks, and builds sustainability leadership capital across society.

CSL has helped people from diverse backgrounds to become future sustainability leaders. It offers an eight-month fellowship for emerging leaders that includes weekly workshops, innovative sustainability projects, retreats and mentoring by top leaders. Graduates are supported by an alumni program and communicate sustainability widely through the Speakers Bureau.

Current needs of group
CSL is seeking skilled volunteer strategic planning facilitators, HR coordinators and business development gurus.

See goodcompany at for more information on this and other volunteering opportunities.

For more information about volunteering in general, see also:

LUCY MCKERNAN is co-manager and MAT TINKLER the acting manager of the Public Interest Scheme at PILCH. Further information is available from

1. VLRC Civil Justice Review report, May 2008.

2. ALRC 1995 report, Costs Shifting – Who pays for litigation, p78.

3. The Human Rights Committee has found that a rigid application of a policy to award costs to the winning party may breach the right of access to justice inherent in the right to a fair hearing: Anni Aarela and Jouni Nakkalajarvi v Finland, UN Doc CCPR/C/73/D/779/1997.

4. [2005] 1 WLR 2600. The House of Lords has not yet explicitly considered PCOs in public interest matters.

5. Note 4 above, at p2625.

6. (1998) 193 CLR 72.

7. Ruddock v Vardalis (No.2) (2001) 115 FCR 229.


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