Case: Physical Disability Council of NSW v Sydney City Council [1999] FCA 815
Outcome: considered
In Physical Disability Council of NSW v Sydney City Council [1999] FCA 815 , the applicant requested a O 62A r 1 order after Madgwick J declined to grant the interlocutory injunction sought. This weighed against the exercise of his Honour's discretion to make the order. Unlike the applicant in Physical Disability the applicants have filed the notice of motion at an early stage in the proceedings. This is clearly appropriate. However, the timing means that the extent of the evidence and the costs to be incurred cannot be fully assessed at this stage. If an order is to be made, it is difficult to determine the amount at which costs should be capped. 16 Virgin raises the history of the litigation to date and asserts that a number of steps have been taken unnecessarily because of the way in which the applicants have conducted the proceedings. There have been amendments to the application and to the points of claim and also correspondence in respect of the provision of particulars. Certain claims have been abandoned. The applicants do not really dispute that there has been a somewhat unfortunate procedural history or that any order capping the costs may exclude costs arising from the amendments or that any order under O 62A r 1 should take effect from the date of filing of the notice of motion. 17 The filing of the notice of motion early in the proceedings is relevant as is the procedural history prior to that filing. 45 The existence of a public interest in the determination of the issues in litigation is a factor of some significance in the awarding of costs. However, public interest and an arguable case are not necessarily decisive and not, of themselves, sufficient to prevent the usual costs order being made ( Ruddock at [18] [19]; Woodlands at 148; Physical Disability at [7]). The usual order for costs applies notwithstanding that the Act is beneficial legislation ( Fetherston at [9] per Heerey J). However, discretionary considerations may lead to a different result ( Fetherston at [12]). 46 As stated by Madgwick J in Physical Disability at [7]: ...if proceedings can properly be characterised as public interest litigation, the prime motivation of which is the upholding of the public interest in the rule of law, that may be a factor which contributes to a finding that there are special circumstances justifying a departure from the traditional rule...the characterisation of proceedings in that way is not alone enough to warrant such departure. Something more is required. That additional quality or requirement may be met by its being shown that the unsuccessful moving party had an arguable case and that the case had raised and resolved significant issues as to the interpretation and future administration of a statute dealing with matters of public interest and concern, which has practical implications for relevant sections of the public and for private persons. (original emphasis) 47 Virgin says that, while there is an undeniable public interest in people with disabilities having dignified access to goods and services, the applicants do not explain the importance of independent travel for people with disabilities or how the ITC undermine their sense of personal dignity. Virgin points out that persons with disabilities rendering them unable to comply with the ITC may require care during a flight, either from a carer or from one of the airline staff and that the applicants do not explain why the existence of a carer affects their ability to travel independently or their sense of personal dignity. 48 The applicants may not have explained these matters. They may or may not be relevant to a final determination of discrimination. That does not, however, derogate from the public interest in the subject matter of these proceedings.