The Supreme Court has overturned an order that awarded Dominic Dunne his costs after he lost a challenge concerning legislation for the south eastern route road project. It ordered him to pay the respondents’ costs of both the High Court proceedings and his unsuccessful appeal.
The judgment on costs, delivered by Chief Justice Murray on 6 December 2007, followed the Court’s earlier unanimous decision upholding the High Court’s dismissal of Dunne’s substantive appeal. The remaining issue was the respondents’ appeal against the High Court order that Dunne receive his costs, and the costs of the appeal to the Supreme Court.
The High Court had awarded Dunne costs despite his loss. It considered that he had acted in the public interest, had no private personal advantage, and had raised issues of general public importance. The Supreme Court said those matters may be relevant to a court’s discretion, but they do not create a category in which an unsuccessful public interest litigant should automatically receive costs. The usual rule is that costs follow the outcome, subject to a reasoned departure in the circumstances of the particular case.
The Supreme Court also found that the High Court had given undue weight to those factors and had incorrectly relied on earlier proceedings brought by Dunne and separate proceedings brought by another party. Those proceedings had formed part of the High Court’s explanation for treating the issues as especially important. The Supreme Court held that they did not materially justify departing from the ordinary costs rule in this case.
In exercising its own discretion, the Supreme Court accepted that Dunne had brought the case without a private interest and to promote compliance with the law. But it found that the legal issues were not of such special and general importance as to warrant an exceptional costs order. It allowed the respondents’ appeal on costs and substituted an order that Dunne pay the defendants’ costs of the High Court proceedings.
For the Supreme Court appeal, Dunne was also unsuccessful. The Court found no circumstances justifying a departure from the usual rule and ordered him to pay the respondents’ costs of that appeal. The costs judgment did not alter the earlier decision dismissing his substantive appeal.