In this submission to the NSW Law Reform Commission (NSWLRC), PIAC argues that one of the most significant barriers to public interest litigation in Australia is costs, in particular, the risk of adverse costs. Public interest litigation promotes greater equity, access and confidence in the legal system, creates economies of scale, enhances public sector accountability and reduces the costs associated with market and governmental failure. Existing costs rules, however, thwart the realisation of these benefits. In PIAC’s submission, we argue that new legislation is required to introduce coherent and distinct costs rules in public interest matters. If a matter meets the statutory definition of ‘public interest proceedings’, there should be a rebuttable presumption in favour of making a public interest costs order. PIAC also supports the establishment of a fund that could partially or wholly indemnify applicants in public interest cases.
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