Mullumbimby Action Group -> latestnews -> communitylegalcosts

Ruling on legal costs: support for community groups

One of the major hurdles that environmental and community groups confront when they decide to take on a corporate or government entity in the courts is what happens if they lose the case? Every year there are fundraisers for community-based organisations that, having lost a court case to stop a development, find themselves facing legal bills of more than $200,000.

A recent ruling  by the  Land and Environment Court may make things easier by limiting the amount a community or environmental group would have to pay if they did lose their case.

The Blue Mountains Conservation Society (BMCS)  is alleging that Delta Electricity has been polluting the Cox's River near Lithgow and it wants court orders to get it to stop and to clean up any mess they say has been made. Delta denies the claims. Knowing they would be in for a long and expensive fight, the BMCS took the unusual step of
asking Justice Pain to rule that even if they lost the case, Delta Electricity would only be able to recover up to $20,000 in legal costs from them.

Justice Pain agreed. Costs, if the case runs all the way to trial, could be more than $200,000 given that it would involve expert evidence, the involvement of big law firms, senior counsel etc.

However Justice Pain's ruling has conditions.The litigation has to be in the public interest and it helps if the community or environmental group has brought matters to the attention of government before heading to court. Having lawyers act pro bono, and having no pecuniary interest in the outcome of the case, are also relevant factors, as is the issue of the strength of the case.

This decision, if it is followed by other courts, will bring Australia into line with the UK and Canada on capping legal fees. And it might also get governments and corporations talking to environmental and community groups earlier, although the reality is that many litigants who are fighting against community organisations don't expect to recover all of their costs if they win anyway.

The win by the BMCS represents an innovative attempts by the courts to do what our legislators have repeatedly failed at -- making access to justice cheaper for the small player.