Case: Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152
Outcome: discussed
Reference was made to the decisions of Ruddock v Vadarlis (2001) 115 FCR 229 and Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152. The Court declined to order costs against the unsuccessful appellant because the unusual circumstances of the case involved matters of high public importance and raised the question of the liberty of individuals who could not take action on their own behalf in the determination of their rights. In declining to order costs, the Court considered inter alia, the fact that the proceedings raised novel and important questions of law in relation to the alleged deprivation of liberty of individuals, executive power of the Commonwealth, and the operation of the Migration Act 1956 (Cth). Judicial opinion was divided. There was also no direct or financial gain to those respondents in pursuing the matter. 13 In Geeveekay , even though the appeal involved an important question of law, the resolution of which was in the public interest, namely whether the terms of certain contracts for the sale of land were credit contracts, regulated by the Consumer Credit Code (Vic) , the proceeding was of a private nature. In effect, the applicant in Geeveekay brought the appeal in the pursuit of its own commercial interests, and there was no sufficient reason to distinguish it from other private litigation between a member of the public and a government agency. The present case, in my view, falls within the latter category. 14 Finally, the applicants contended that, because the costs of the first respondent could be recovered from the property of the NAC: see s 74 of the Act, including the costs of the second respondent incurred as Administrator upon the appointment of the second respondent, that is a more appropriate avenue for the respondents to be protected as to the costs of the proceedings than an order against the applicants. They rely on the right under s 74, but do not want it exercised. They submit that the Registrar should not exercise those powers because (they contend) the exercise of them would render the NAC insolvent and lead it to being wound up. I do not know enough about the financial circumstances of the NAC, or the progress of the administration, to know whether that is the case. There is some evidence to suggest that the NAC through various business activities conducted through entities in which it had an involvement and that it had a very substantial range of assets and perhaps liabilities. I do not think that matter provides a basis for not applying the usual rule as to costs. 15 One matter upon which the applicants sought to make submissions was based upon proposed affidavit evidence relating to the question of costs. That evidence was to show that the second respondent, despite evidence given at the hearing, had not progressed the administration with the speed at which he had said he would, and that the outcome of the administration has been regarded by the Anangu as unsatisfactory, even though it is ongoing. The respondents opposed the application to rely upon that affidavit evidence on two grounds. Firstly, that it was irrelevant to the exercise of the costs discretion in any event. And secondly, that it should not be received in its current form partly for reasons of form and partly because they would then wish to contradict it and to cross-examine the deponent about it. I do not propose to receive that material. I do not think the events after the conclusion of the hearing are appropriate matters to address in relation to the exercise of the costs discretion, particularly as they are apparently contentious and would prolong the hearing. For that reason, I propose also not to receive the additional responsive affidavit upon which the second respondent putatively sought to rely.