The winner takes it all: Legal costs as a mechanism of control in public law

Fear of an adverse cost order in public law litigation can prevent potential applicants from seeking judicial review in courts with serious consequences for diminishing access to justice. If people are deterred from commencing public law proceedings, then government actions and decisions will not be subject to oversight and review by the courts. The issue of the impact of adverse costs orders is critical to understanding the operation of public law in Australia. While the general rule remains that costs follow the event, so that the unsuccessful party pays the legal costs of the successful party in a judicial review action, there have been some encouraging recent developments towards a more flexible approach. In one Australian state jurisdiction with a judicial review statute, Queensland, important provisions concerning costs have been inserted into the statutory framework. These provisions have not yet been widely utilised and their potential remains unfulfilled. Moving beyond the court system, the role that merits review by tribunals can play in terms of enhancing access to justice must be championed. Tribunals are cheaper to apply to than courts. They also resolve matters faster and seldom impose adverse costs orders. In conclusion, there is a pressing need for further reform on legal costs. Reform is justified on the basis of greater public accountability and access to justice, and might also go some way towards correcting the inherent power imbalance between citizens and the government.