Case: Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284
Outcome: followed
In the absence of a hearing on the merits, Finkelstein J has concluded that " it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287. His Honour also there referred to the following summary of propositions provided by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201: (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial.... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... Some reservation has been expressed as to whether each party should bear its own costs in the circumstances contemplated by Finkletstein J " except in special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47] per Gillard J. Concurrence is, however, expressed with respect to the general approach as set forth by both Finkelstein and Hill JJ. 22 The approach set forth by Finkelstein J in Gribbles Pathology does not preclude consideration being given to such an assessment as to prospects of success of an application or a motion filed in proceedings. It may well be inappropriate to entertain submissions for the purpose of forming an assessment as to prospects of success solely to inform the discretion as to costs; but where agreement as to the manner in which proceedings may be resolved has been reached only at a point of time when the Court has in fact entertained submissions and been informed as to the competing submissions of the parties, any preliminary view that a Court has reached at that point of time may be taken into account when making an order as to costs. 23 Such practical success as the Applicant may have achieved in securing the assurance from the Minister that there was to be no reliance placed upon the November 2007 notice -- and perhaps thereby entitling him to an order for costs in his favour -- has been very much tempered by the lack of success that he would in all likelihood have suffered had the Motion proceeded to decision. Moreover, the discontinuance of the proceedings has denied the Respondent Minister the opportunity of vindicating his position. 24 This assessment of the competing positions of the parties has also been a consideration upon which considerable reliance has been placed in concluding that there should be no order for costs.