Costs – public interest litigation – whether depart from usual orders as to costs

In Bob Brown Foundation Inc. v Commonwealth of Australia (No.2) [2021] FCAFC 20 (26 February 2021) the Full Court considered costs following the hearing of a separate question resulting in unsuccessful public interest litigation.

The Full Court examined and applied the principles in Oshlack v Richmond River Council (1998) 193 CLR 72. Having regard to particular facts and circumstances of the proceeding, the Full Court departed from the usual order as to costs and held there should be no order as to costs.

Dan Star QC is a Senior Counsel at the Victorian Bar, 03 9225 8757 or email The full version of these judgments can be found at

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