Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
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] ). 8 As noted by McHugh J in Oshlack 193 CLR at 97, the traditional exceptions to the usual order as to costs focussed on the conduct of the successful party where its conduct disentitled it to the beneficial exercise of the judicial discretion. His Honour in that case cited Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 at 874 where Devlin J said: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." 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. 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. 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) 39 There is no misconduct that I can identify with respect to the constitutional arguments put by the respondent or the failure of the respondent to comply with the Judiciary Act 1903 (Cth). Indeed, overall the conduct of the respondent in the proceedings has not been out of the ordinary, in my view is not misconduct as described by McHugh J in Oshlack [1998] HCA 11 ; 193 CLR 72, and does not warrant a departure from the usual order as to costs for a successful litigant. 40 I cannot identify anything in the outcome of the case, the nature of the litigation nor the conduct of the parties which makes the circumstances such that I should reconsider my order as to costs in this case. THE COURT ORDERS THAT: 1. The order made 2 May 2007 that Access For All Alliance (Hervey Bay) Inc pay Hervey Bay City Council's costs of and incidental to the application, to be taxed if not otherwise agreed, is confirmed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 29 June 2007 Counsel for the Applicant: K Eastman Solicitor for the Applicant: Public Interest Advocacy Centre Counsel for the Respondent: K Fleming QC and R Green Solicitor for the Respondent: MacDonnells As Amicus Curiae: Acting Disability Discrimination Commissioner Date of Hearing: 2 May 2007 Date of Judgment: 29 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/974.html