Case: Fetherston v Peninsula Health (No 2) [2004] FCA 594 ; (2004) 137 FCR 262
Outcome: considered
Many of these factors have not been challenged by Virgin. However, Virgin submits that they are not sufficient to depart from the usual costs order. Virgin points out that, as was recognised in Fetherston v Peninsula Health (No 2) [2004] FCA 594 ; (2004) 137 FCR 262 and Flew , there is nothing in the Act or in other legislation to indicate that policy considerations warrant a special provision for costs in human rights litigation. 44 There is, of course, O 62A r 1 and the circumstances in which this rule applies are not limited. 45 The existence of a public interest in the determination of the issues in litigation is a factor of some significance in the awarding of costs. However, public interest and an arguable case are not necessarily decisive and not, of themselves, sufficient to prevent the usual costs order being made ( Ruddock at [18] [19]; Woodlands at 148; Physical Disability at [7]). The usual order for costs applies notwithstanding that the Act is beneficial legislation ( Fetherston at [9] per Heerey J). However, discretionary considerations may lead to a different result ( Fetherston at [12]). 56 As Collier J observed in Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] , in the context of the exercise of the discretion concerning costs, the issue is whether there is anything about the particular proceedings to persuade me that it is appropriate to depart from the usual order. Other decided cases in which some but not all factors are present or cases that present different considerations are ' not particularly helpful ' ( Fetherston at [12] per Heerey J). I note that in no other case cited by the parties were all of the factors present that arise in these proceedings. For example, the application was only made after judgment was given ( Dibbs ; Access For All Alliance ) or the case could not be characterised as public interest litigation ( Access For All Alliance ). 58 Virgin contends that the costs likely to be incurred will be substantially in excess of $15,000 and in excess of the combined proposed cap of $30,000. Virgin estimates that the costs will be well in excess of $53,000, reflecting the considerable time, expense and resources that will be required for the preparation and the hearing. Virgin also contends that the applicants have, to date, demonstrated a failure to conduct the matter in an efficient and economical manner. It has been noted (by Heerey J in Fetherston and by Barnes FM in Flew ) that neither the Act nor the Federal Court Rules provide for a limitation to the usual costs order or any special provision for costs in proceedings brought under the Act. Unlike the Federal Magistrates Court, the Federal Court Rules do not limit and prescribe costs, enabling a party better to calculate at the outset of litigation the likely costs to be awarded to the successful party. However, this is only of assistance when an estimate can be made of the length of hearing and the costs of the evidence. In Flew , as here, Virgin has estimated the costs of a likely hearing, not including its costs of preparation and evidence.