A group of people who lost their legal battle with NSW over its failure to control the 2003 bushfires before they devastated the ACT have been ordered to partially cover the state government's court costs.
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A series of litigants took the ACT and NSW governments to court, claiming failures to properly fight the fires that eventually swept through the city on January 18, 2003.
The fires tore through the south-western suburbs of Canberra, killing four people, and destroying almost 500 homes.
Landowners and other individuals took the NSW Government to court over its liability for the fires, claiming the Rural Fire Service and the NSW National Parks and Wildlife Service were negligent in the days leading up to the disaster.
At the same time, others sued the ACT Government, forming the largest single piece of civil litigation in the territory's history.
The litigants battling the ACT Government settled out of court last year, but the court case against NSW continued until a judgment was handed down in the ACT Supreme Court in December last year.
In that judgment, Chief Justice Terence Higgins found NSW had embraced an "inadequate and defective strategy" in fighting the fires, but was not legally required to pay compensation.
To prove negligence under NSW law, the plaintiffs needed to show the conduct of NSW firefighters was unreasonable.
Despite identifying failures in the decision not to fight the McIntyre's Hut fire at Baldy Range at first light on January 9, and the failure to back-burn along the Goodradigbee River, Chief Justice Higgins said there was no evidence to suggest the RFS had failed to act in good faith.
The matter came back before Chief Justice Higgins on June 28 to decide who would pay the costs for the lengthy court proceedings.
The issue of costs - which would typically go in favour of the NSW Government as the successful party - was complicated by a number of factors.
Chief Justice Higgins said it would be unfair to make the remaining parties - landholders Wayne West and Lesley West, and a group of 30 people represented by insurer QBE - to pay for all court costs, when many other plaintiffs who had been involved in the proceedings had since settled out of court.
Chief Justice Higgins also found the amount of costs the plaintiffs should pay was reduced, because they had been partially successfully in proving NSW's liability for negligence.
"In that context, it is fair to observe that the plaintiffs were successful in persuading the court that NSW was negligent," Chief Justice Higgins wrote in an order for costs published on Wednesday.
The court also found that the plaintiffs should not bear any of the costs relating to the proceedings against the ACT Government, which were settled out of court.
The amount the Wests owed was also largely reduced because they were only concerned with one issue: the escape of fire across the Goodradigbee River.
"Even that issue was one shared with all other plaintiffs," Chief Justice Higgins wrote.
"It would be unfair for them to have to bear the entire burden of costs, even on that one issue."
The QBE plaintiffs were ordered to pay 50 per cent of the NSW Government's costs on a party and party basis. Those costs do not include those borne in the proceedings against the ACT.
Chief Justice Higgins said the West landholders should be liable to contribute 5 per cent to the QBE plaintiffs to cover the legal proceedings concerned with the escape of fire from the Goodradigbee River.
