Case: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Outcome: applied
is considerable authority which deals with the issue of the appropriate order to make as to the costs of proceedings where the proceedings are either sought to be discontinued or do not proceed to a final hearing. I have been referred to a number of those authorities, in particular J T Stratford &amp; Son Ltd v Lindley (No 2) [1969] 3 All ER 1122; Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; O'Keeffe Nominees Pty Limited v BP Australia Limited (No 2) (1995) 55 FCR 591; Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622; and One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548. It is a trite proposition that the power to order costs by the Court is in the Court's discretion: see s 43 of the Federal Court of Australia Act 1976 (Cth). In Australian Securities Commission v Aust-Home Investments Limited (supra) at 201, Hill J, having referred to a number of cases including Stratford v Lindley (No 2) (supra), set out a number of propositions which he considered were supported by the authorities. In particular, as to the fifth proposition to which he referred, Hill J said: "Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, a case which, however depended upon the specific wording of the statute under consideration." His Honour then went on to say: "Where interlocutory relief has been granted, that fact carries no implication as to the ultimate merits of the case but does ordinarily suggest that the Court granting interlocutory relief has accepted or found that there is an arguable issue to be tried between the parties and that the balance of convenience favours the grant of that relief." In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (supra), McHugh J held that there should be no order for the costs of the proceeding. His Honour said at 624-625: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a Court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The Court cannot try a hypothetical action between the parties. ... Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (footnotes omitted)