Case: Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196 ; (2006) 157 FCR 112
Outcome: distinguished
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] ). 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). 19 The applicant referred in its submissions to the finding of the Full Court in Griffiths [2006] FCAFC 196 ; 157 FCR 112 and a number of cases to which reference was made by the Full Court in Griffiths 157 FCR at 116, namely: &#8226; Holder v Searle (1998) 44 IPR 1 &#8226; Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 &#8226; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458 &#8226; Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 &#8226; Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349. 20 In Griffiths 157 FCR at 116-117 the Full Court held that, notwithstanding the success of the appeal, the merits of the case before the Federal Magistrate below remained unchanged and in those circumstances the respondent should not be required to bear the burden of those costs below. The circumstances in Griffiths [2006] FCAFC 196 ; 157 FCR 112 bear no resemblance to the facts of the proceedings currently before me. 21 Further, in relation to the other cases cited by the applicant, as the Full Court observed in Griffiths 157 FCR at 116: &#8226; in Holder v Searle 44 IPR 1 where the prosecution failed in two of the three informations it proffered against the defendant, and was only partially successful in respect of the remaining information, Spender J ordered that the prosecutor pay one-third of the defendant's costs &#8226; in Brimaud [1998] FCA 1392 where the applicant was successful in one of three claims against the respondents, and in respect of one of the unsuccessful claims the extent to which the length of the case was increased by the conduct of that issue was not insignificant, Emmett J ordered that the respondents pay 15% of the applicant's costs of the proceedings &#8226; in Esso 144 ALR 458 where the taxpayer's success overall was slight, Sundberg J made a broad-brush global order as to costs, determining that the taxpayer should pay five-sixths of the respondent's costs, and the respondent one-sixth of the taxpayer's costs &#8226; in Inn Leisure Industries 28 FCR 151 the applicant succeeded in one of three claims, however the Court considered in the circumstances of the case that the applicant should recover three-quarters of the costs of the application &#8226; in ACCC v Commercial and General Publications [2002] FCA 1349 , Heerey J observed that three-quarters of the trial was taken up with charges which were dismissed, and awarded the defendant half its costs.