Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: applied
An order for costs is clearly discretionary in nature (s 43 Federal Court of Australia Act 1976 (Cth)), although in the ordinary course of proceedings costs follow the event (cf Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235; Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196 ; (2006) 157 FCR 112). This is because an order for costs is not a punishment of the party against whom the order is made, but is intended to serve to indemnify a successful party against the expense to which it has been put by the litigation ( Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72; King v Yurisich (No 2) [2007] FCAFC 51 at [19] ). 9 The ambit of traditional exceptions has widened however in recent times in Australia to include, in limited cases, issues of public interest ( Oshlack [1998] HCA 11 ; 193 CLR 72, Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229) and certain circumstances where a litigant has succeeded only upon a portion of a claim (so that the court may find it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed) ( Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229). 10 The issue for consideration in this case is whether there is anything about these proceedings which would persuade me to exercise my discretion to depart from the usual course (cf Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; Oshlack [1998] HCA 11 ; 193 CLR 72; Tate v Rafin [2000] FCA 1582). Such a departure requires, as a general proposition, a valid special reason ( Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 ; (2001) 108 FCR 1 at 25 per Beaumont ACJ, Higgins and Gyles JJ agreeing). In considering the submissions of the applicant in support of a reconsideration of my costs order, while I note the helpful cases to which my attention has been drawn, I also note and adopt comments of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 where his Honour said: "In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a 'wilderness of single instances.'" (at [12]) 11 Accordingly, the costs discretion of the Court is a discretion to be exercised judicially and not against the successful party except for some reason connected with the circumstances of the particular case ( Oshlack 193 CLR at 81 per Gaudron and Gummow JJ; Black CJ and French J in Ruddock v Vadarlis 115 CLR at 234). 12 The applicant has submitted that costs do not always follow the event where: &#8226; there has been success in part by a litigant: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229; &#8226; the public interest so warrants a departure from the usual rule: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, Oshlack [1998] HCA 11 ; 193 CLR 72; &#8226; the conduct of the successful party at the trial was such as to unreasonably prolong the proceedings: Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229. 14 As pointed out by Black CJ and French J in Ruddock v Vadarlis 115 FCR at 235, where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed (cf Griffiths 157 FCR at 117). 25 It is clear that, in appropriate circumstances, the Court can make orders departing from the usual orders as to costs, on account of the litigation being in the public interest. The decision of the High Court in Oshlack [1998] HCA 11 ; 193 CLR 72 and the decision of the Full Court of the Federal Court in Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229 are illustrations of this point. 26 In my view however this litigation could not be characterised as proceedings in the public interest as in Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229 for the following reasons. 31 Fifth, the fact that the applicant's claim was dismissed for want of standing distinguishes this case from cases such as Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, where the plaintiff did have standing and the merits of the case could be properly explored by the Court. Unlike in those cases, in the case before me issues of substance were not ultimately resolved. In this context I note comments of Aickin J in Australian Conservation Foundation 146 CLR at 512. 32 Finally, unlike Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, the issues agitated by the applicant in this case did not raise matters concerning, for example, fundamental issues such as the liberty of individuals who were unable to take action on their own behalf to determine their rights. As was made clear by my judgment, the DD Act protects the rights of aggrieved persons and provides statutory authority for such persons to make complaints. A person with standing can commence an action pursuant to the DD Act as to the application and interpretation of the Disability Standards and the DD Act. While of importance, in my view the litigation in this case was not of itself of such "public interest" as to warrant a departure from usual rules as to costs. 33 Accordingly, I am not persuaded that the proceedings were of "public interest" to disentitle the successful respondent from an order for costs. 34 Although McHugh J was in dissent in the decision in Oshlack 193 CLR, at 98 his Honour outlined traditional principles applicable to the award of costs in circumstances where the successful party had engaged in misconduct as follows: "'Misconduct' in this context means misconduct relating to litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart form the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute." (cf Ruddock v Vadarlis 115 FCR at 236)