It is well established that public interest groups who unsuccessfully appeal matters to the Environment Court can have costs awarded against them. Sometime ago Alliance MP Sandra Lee introduced a Member's Bill which would prevent costs being awarded against a community or environmental interest organisation engaged in litigation to protect the community or the environment, unless the Court was satisfied that the organisation proceeded with reckless disregard to the law or the facts to the case. The Bill is still before the Select Committee which is due to report back to the House in February 2002.

Recently the High Court (Cooks Beach Developments Limited v Cooks Beach & Ferry Landing Ratepayers Association Inc) considered an argument from an incorporated society that it should not be liquidated for failing to pay Environment Court costs. The society tried to argue that it should not be liquidated because it was a public interest group, formed an integral part of a local community, and serves the interest of local residents (while also arguing that the particular development, which they sought the challenge, was allegedly agreed without any local consultation).

The Court rejected these arguments and liquidated the society saying:

But the fact remains the defendant association took part in the proceedings before the Environment Court, must have known (certainly should be taken to have known) that it faced a liability for costs if it did so unsuccessfully, it incurred that liability, and it is unable to meet it.

This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this article.

Copyright Phillips Fox, 2001

Author - Dean Knight: dean.knight@phillipsfox.com

Web site: Phillips Fox