Case: De Rose v State of South Australia (No 2) [2005] FCAFC 137
Outcome: cited
The effect of s 85A was discussed by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305. Lee J's observations were picked up by the Full Court of the Federal Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. The Court consisted of Wilcox, Sackville and Merkel JJ. Their Honours at par 8 said: 'In Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, Lee J made the following points about s 85A: &#8226; Section 85A(1) is intended to remove any ground for anticipation or expectation that unless cause is shown for another order, costs will follow the event (at [33]). &#8226; Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion (at [31]-[32]). &#8226; There is no requirement that a threshold condition be met before the Court is empowered to make a costs order. It follows that the exercise of the discretion is not conditional upon a finding of fact or the formation of an opinion as to the occurrence of unreasonable conduct or the existence of special circumstances (at [35]). &#8226; Section 85A(2) of the NT Act puts beyond doubt the extent of the Court&#180;s discretion in cases where a party acts unreasonably, but s 85A(2) does not control or limit the discretion available to the Court under s 85A(1) (at [36]-[37]). &#8226; The matters to be taken into account in making a costs order are left to the Court&#180;s discretion, which must be exercised judicially. However, the starting point is that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs (at [34]) .' 7 In this particular case, the submissions by Mr Neal on behalf of the Jagera People are: ' 5. Costs While there is no requirement for a threshold condition to be met before the Court is empowered to make a costs order in this matter, Jagera People argue that even if there was, it would have been surpassed by the conduct of Mr Coghill in: 1. Bringing the proceedings in the first place; 2. Failing to withdraw the Notice of Motion in a timely manner including following indirect discussions between Michael Neal of Michael Neal Lawyers and Paul Richards of counsel on behalf of Mr Coghill; 3. Failing to communicate with the Jagera People let alone attend the meeting to discuss this matter that was arranged by Jagera People; 4. Failing to respond to the fax of 23 May 2006 from Michael Neal Lawyers in a timely manner.' The reference to a fax of 23 May 2006 is a reference to a fax in which Mr Neal wrote to Mr Coghill, in which he said: '...I am instructed that as you are already aware that your application to strike out the claim has little if any prospects of success, and as you have not: 1. taken up the invitation of the Jagera People to attend a meeting, or 2. withdrawn the application, Jagera People regrettably must seek an order for costs against you if you lose the application .... In an endeavour to try and settle this matter as amicably as possible, I am also instructed that if your application is withdrawn by close of business on Wednesday, 24 May 2006, no order for costs will be sought. Jagera People ask again that you withdraw your application and do so straight away.' 8 Mr Coghill did not reply to the fax, but on 25 May filed the document headed, ' Notice of Discontinuance ', the terms of that document are set out in par 1 above. The offer contained in the fax is a little bit at odds with the application for costs now made, the basis of it being that the deadline imposed by the facsimile, namely Wednesday 24 May 2006, passed and there was no Notice of Discontinuance filed, or any communication by Mr Coghill with Mr Neal. 9 In the light of all the material, including the written submissions filed by Mr Coghill today, and observations put to the Court on behalf of Queensland South Land Council by Mr Colin Hardy concerning attempts to resolve matters of dispute involving claims, including the claim of the Jagera People, I am not satisfied that this Notice of Motion is a proceeding which has by any unreasonable act or omission caused another party to incur costs in connection with the institution or conduct of it. This is not a case where an unmeritorious claim has been progressed in circumstances where costs are caused to another party.