Case: Ritter v Godfrey [1920] 2 KB 47
Outcome: cited
The applicants identified a number of matters relevant to whether the normal order as to costs should apply. It is necessary to identify special circumstances which would lead to departure from the general rule that costs should follow the event: Ritter v Godfrey [1920] 2 KB 47 ( Ritter ), at least at a practical level. 9 The first was that the administration of the NAC was initiated by the first respondent, and then the applicants were in effect obliged to institute proceedings because the respondents denied them information about the progress of the administration. The applicants were the Anangu, ie representatives of the three Aboriginal Communities directly affected by the appointment of the second respondent. As the evidence in the proceedings showed, there was a real concern on the part of the first respondent about the maintenance of a Register of Members by the Governing Committee of the NAC before the appointment of an Administrator and a real concern about how the then members of the Governing Committee came to hold their offices (as well as about other matters concerning the administration of the NAC). However, at a practical level, I do not think there is any doubt that at least informally the applicants were all, or almost all, members of the Governing Committee (at least a de facto governing committee) of the NAC at the time of the appointment. They were, and remain, genuinely and properly interested in the well being of the NAC on an ongoing basis and the effect of the administration upon its affairs. The NAC and its subsidiary or associated activities was a very substantial enterprise. That proper interest (in the practical sense) arose from the applicants being representatives of the Anangu as well as their previous status. It is also apparent from the evidence that the applicants, through their solicitors, invited the respondents to keep them informed as to the progress of the administration but that their requests for information were largely unsatisfied. That circumstance must be seen in context. Their request for information was, on occasions, more than that: assertions that the second respondent, and later the first respondent, should do things which they allegedly had not done; and that the second respondent was doing things detrimental to the interests of NAC. That may explain, in large measure, why the applicants' requests for information were not satisfied. In addition, the respondents took the view that their asserted position as officers of the NAC was in doubt for the reasons already given. Nevertheless, no other persons more obviously than the applicants were identified as persons from the Anangu who might have been kept informed of the progress of the administration, and I think it was appropriate that, by some means, the Anangu should have been kept generally informed as to its progress. It is therefore understandable that the applicants were "invited" (to use the word used by them in submissions) to commence proceedings by the respondent. I shall return to this feature later in these reasons. 10 The applicants also contended that any order for costs against them, given that they were seeking to involve themselves in the administration of the NAC and in the light of its very significant interest to their communities, would "send a message to Aboriginal persons not to involve themselves in such matters". I place little weight on that factor. An applicant has a perceived interest in the matters raised in the particular proceeding in every circumstance, and not uncommonly that interest is shared with others. Sometimes, for that reason, the applicant is supported by others interested, including support as to the costs of the proceeding. But it is no principle of law that the fact that the proceedings are brought by one person, inter alia, for the indirect benefit of others or because there are others interested in the outcome means that that applicant should not be obliged to pay the respondents' costs if the proceedings are unsuccessful. Nor is there any principle, so far as I am aware, that the exercise of the costs discretion should be exercised differently because the applicants are indigenous persons. I do not think the applicants meant to submit that. 31 No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.