El gnosticismo en Eric Voegelin

Cost barriers in public interest and discrimination matters

Public interest proceedings are an important mechanism for clarifying issues of relevance to the whole community. Public interest litigation assists in the development of the law and provides greater certainty about the law, greater equity and access to the legal system, and increased public confidence in the administration of the law.

In Oshlack v Richmond River Council, Justice mchugh noted that the possibility of adverse costs orders may well inhibit some individuals and groups from bringing meritorious cases to court.260

It is therefore appropriate to consider whether public interest matters are not reaching the courts because of the risk of an adverse costs order.

under section 43 of the Federal Court of Australia Act 1976 (Cth), the Court has a general discretion to award costs in all proceedings before it.261 _{The AlRC noted that:}

the current discretion of courts to vary the usual order that costs follow the event where the

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matter is in the public interest is not often utilised,262 _and

courts tend to take the view that a party should not be deprived of their right to seek costs if

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successful merely because the matter is in the public interest.263

The AlRC considered that a costs order will most effectively assist to facilitate public interest litigation if the order were made at the beginning of the proceedings, notwithstanding that doing so may lead to a ‘substantial dispute between the parties that might be more easily resolved’ if the order was made at the conclusion of the proceedings.264 _{Although hearing an application for a}

costs order will add another interlocutory proceeding to the matter, the main benefit in removing the barrier to litigation is only achieved in practice if litigants are aware of where they will stand as regards costs before those costs are incurred.

An example of a legislative scheme enabling a court to consider whether a proceeding affects the public interest in considering an application for parties to bear their own costs is section 49 of the

Judicial Review Act 1991 (Qld).

In cases where a public interest costs order were made, there would by definition be additional costs on defendants that are ultimately successful but are unable to recover a proportion of their costs. Concerns are raised on the basis of a potential flood of frivolous litigation, which businesses would have to pay for. It is also suggested that if a matter were truly in the public interest, then the public, not the business, should fund it.265

260 _{Oshlack v Richmond River Council (1998) 193 ClR 72, [90].}

261 _{Existing measures also include cost capping under Order 62A of the Federal Court Rules. This Order allows the court to}

specify the maximum costs that may be recovered on a party and party basis, arguably increasing the ability of the ‘everyday Australian’ to attain justice. however, the order only regulates party/party costs, and no reference is made in the Order to the ability of the court to determine in advance that costs will not follow the event.

262 _{Australian law Reform Commission Report 75 Costs shifting – who pays for litigation (1995) pp 143–4.}

263 _{Ruddock v Vadarlis (No. 2) (2001) 115 FCR 229, [18–19].}

264 _{Australian law Reform Commission Report 75 Costs shifting – who pays for litigation (1995) p 151.}

265 _{The Australian, 19 June 2009 Changes to court rules risks flood of litigation. The article discusses a reported proposal for}

public interest costs orders submitted to the victorian Government by the victorian Public Interest law Clearing house. The article quotes Greg Evans acting Chief Executive Australian Chamber of Commerce and Industry – ‘It would encourage endless media–driven and frivolous litigation against companies with potentially serious cost implications for shareholders and business owners, and ultimately those costs would be passed on to customers’.

The cost to a defendant would be an important factor for a court to consider, and it is not expected that such orders would be made as a matter of course.

The AlRC notes that ‘existing legislative provisions aimed at encouraging public interest litigation have not led to a significant increase in the number of litigants’.266 _{Consistent with this experience,}

a ‘flood’ of litigation is not expected as a result of an explicit discretion to award public interest costs orders as:

the appropriateness and limits of a costs order would be a matter for the judge to determine in

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any particular case

case management rules would apply to keep costs proportionate

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the Court could still refer a dispute to ADR to limit the scope of litigation to the core issues

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requiring resolution, and

the significant financial burden on litigants posed by meeting their own costs acts to limit the

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incidence and scope of litigation.

“Consistent with this experience, a ‘flood’ of litigation is not expected as

a result of an explicit discretion to award public interest costs orders.”

In the human rights jurisdiction, complaints can be made to the Australian human Rights Commission by representative groups.267 _{The Commission President is empowered to hear}

complaints, but may terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation.268 _{Representative groups do not generally have standing to take}

action in the federal courts if conciliation fails.269 _{This has the potential to provide an incentive for}

respondents not to conciliate in the Commission, on the basis that the representative group cannot pursue the matter should conciliation fail, and that individual complainants are unlikely to be able to afford the risk and cost of litigating.

The law and Justice Foundation of NSW found that of all the different types of legal issue that people face, they are most likely to do nothing when they experience a human rights issue. The Productivity Commission recommended overcoming this disconnect in relation to disability discrimination claims in its 2004 report on the operation of the Disability Discrimination Act 1992.270

The Government response, delivered in January 2005, did not accept the recommendation on the basis that courts may be asked to adjudicate matters where no actual evidence was presented, effectively seeking an advisory opinion.271 _{however, the party bringing the action would still have}

to identify a specific act or acts of alleged discrimination. In addition, taken in conjunction with recommendations relating to the overarching obligations of parties and active case management, the case managing judge would be able to determine at a very early stage whether there was in fact a justiciable controversy.

266 _{Australian law Reform Commission Report 75 Costs shifting – who pays for litigation (1995), p 147.}

267 _{Human Rights and Equal Opportunity Commission Act 1986, s 46P.} 268 _{Human Rights and Equal Opportunity Commission Act 1986, s 46Ph(i).}

269 _{Human Rights and Equal Opportunity Commission Act 1986, s 46PO. Representative groups rarely meet the standard of} ‘person aggrieved’ required by the Human Rights and Equal Opportunity Commission Act. See, for example, Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 (2 may 2007).

270 _{Productivity Commission, Productivity Commission Inquiry Report: Review of the Disability Discrimination Act 1992, Report}

No. 30, 30 April 2004, Recommendation 13.5.

271 _{Commonwealth Attorney‑General’s Department, Government’s Response to Productivity Commission’s Review of the Disability}

RecommendATIon 8.10

The Government should consider amending federal court legislation to provide a discretion for the court to make a public interest costs order, at any stage of the proceeding, where the court is satisfied that the proceedings concerned will be of benefit to the public because the proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant section of the community, or affect the development of the law generally and reduce the need for further litigation.

The Government should consider amendments to allow representative and advocacy groups to bring actions based on claims of discriminatory conduct under the Disability Discrimination

Act 1992 (Cth), Sex Discrimination Act 1984 (Cth), Age Discrimination Act 2004 (Cth) and Racial Discrimination Act 1975 (Cth) before the federal courts (where conciliation in the Australian

human Rights Commission has failed). Action would be constrained by the requirement that there be a justiciable issue, and that actions may only be taken by established groups with a demonstrated connection to the subject matter of the dispute.272 _{Consideration should also be}

given to whether any remedies that are available to individuals would be inappropriate where action is taken by representative bodies.

Outcomes; Proportionate cost; Resilience.

Class actions272

Part IvA of the Federal Court Act 1976 (Cth), enacted in 1992, enables representative proceedings, or ‘class actions’, to be brought before the Federal Court. Class actions require seven or more people to have a claim which arises out of the same or similar circumstances, and gives rise to a substantial common issue of law or fact.273

The objectives274 _{of introducing representative proceedings were to promote the efficient use of}

public and private resources in resolving disputes and enhance access to justice by providing a means by which similar claims which, by themselves, might be too small to be worth pursuing, could be considered together. In addition, class actions can have a strong regulatory impact with the

In document El fundamento del orden en Voegelin :una comparación con San Agustín y Santo Tomás (página 196-198)