Case: Esber v The Commonwealth of Australia [1992] HCA 20 ; (1992) 174 CLR 430
Outcome: referred to
There is a further reason for rejecting the applicant's submission that s 8(c) of the Acts Interpretation Act afforded it the protection of s 347(1) after 27 March 2006. In order for s 8(c) to operate it is necessary to identify a right or privilege which was in existence at the time that the amendments to s 347 occurred. Such rights may be inchoate or contingent but they must exist: see Esber v The Commonwealth of Australia [1992] HCA 20 ; (1992) 174 CLR 430 at 440. Section 347 prevented the Court from making a costs order against a party to a proceeding under the Act unless the proceeding (including interlocutory applications) was instituted vexatiously or without reasonable cause. Such "protection" could only avail a party once the relevant procedural step had been taken. In the present case each of the procedural events which give rise to the respondent's application for costs occurred after 27 March 2006. Even if the protective effect of s 347(1) can, contrary to my view, be regarded as a right, the "proceedings" to which s 347(1) are said to apply had yet to be instituted and, therefore, no relevant right or privilege had been acquired or had accrued on 27 March 2006. 23 As already noted the respondent seeks an order for costs in relation to its two strike-out applications and the hearing conducted on 9 May 2006. In order to deal with these applications it is necessary to record, in somewhat greater detail than has thus far been attempted, the circumstances which led to the making of the strike-out applications and the conduct of the hearing on 9 May 2006. 24 The proceeding was commenced by application dated 8 March 2006. A statement of claim was also filed on that day. On 9 June 2006 the applicant filed an amended statement of claim. On 16 June 2006, the respondent filed a notice of motion seeking orders striking-out the proceeding or, in the alternative, striking-out certain paragraphs of the amended statement of claim. The notice of motion was made returnable on 4 August 2006. The notice of motion was supported by a detailed affidavit in which the alleged deficiencies of the pleading were canvassed. Subsequently detailed written submissions were made by the respondent. After argument on the notice of motion had been advanced by counsel for the respondent on 4 August 2006, counsel for the applicant sought leave to file a further amended statement of claim. I granted leave and reserved costs. The revised statement of claim was filed on 28 August 2006. Although some of the alleged deficiencies in earlier versions of the pleaded case appeared to have been rectified in the revised statement, the respondent continued to press its strike-out application. Further written submissions were exchanged, further argument was heard, and, on 6 November 2006, I ordered that the applicant's further amended statement of claim be struck-out and that the applicant have leave to file a further amended statement of claim on or before 30 November 2006. Despite granting leave I noted that I harboured a serious doubt that the applicant could amend its statement of claim to advance a case under s 298K conformably with the reasons which I had given for striking-out the amended statement of claim. No order for costs was sought by the respondent.