COSTS – determination of separate question – determination a separate event – costs to follow the event
Solarus Projects Pty Ltd v Vero Insurance (No 9)  NSWSC 503
In this case the judge decided an issue in favour of Solarus. There were still seven issues to be decided in the case. Solarus argued that they should receive costs for the separate issue. Vero countered that costs should be decided on the finality of all the issues.
Essentially, the Court focused on how solving an issue early can help drive the case and save further litigation at times. In addition, if an issue is decided early, that party may lose on other issues, thus blocking their ability to collect for the issue they were successful on. Floruit Holdings Pty Ltd v Sebastian - Builders and Developers Pty Ltd  NSWCA 411 is the general rule in this area and is quoted as follows:
"Her Honour said (at ): The fact that the appellants may not be successful in the main case in the District Court, by reason of a failure to prove causation or for any other reason, does not in my view disentitle them to their costs of the hearing in relation to the separate question, which was a discrete issue. The appellants should have their costs of the hearing of the separate question in the District Court."
The Court ruled in favour of Solarus for the following reason:
"I do regard Bergin CJ in Eq’s approach in Floruit Holdings as reflecting a general rule of practice. Her Honour recognised that the case might yet be lost by the party who was successful on the separate question for a variety of reasons. As Pembroke J put it, the determination of a separate question almost always decides an issue the parties perceive to have legal or practical significance for the resolution of the litigation. That there may be "much for further hearing" in this case, as in like cases, does not detract from the applicability of the "general rule" (with great respect, I hesitate to regard it as a matter of judicial "policy"). None of Vero’s arguments persuade me that this is an occasion for departure from the general rule." (at para 11).
It was ordered that the defendant to pay the plaintiff’s costs of and incidental to the determination of the separate questions on the ordinary basis.
PROCEDURE - COSTS - general rule costs follow the event - where relevant "event" arises from accrual of cause of action triggered by defendant's criminal activity
Commissioner of the Australian Federal Police v Fysh (No 2)  NSWSC 105
In this matter, proceedings were commenced by the Commissioner of the Australian Federal Police against Dr Stuart Fysh seeking a pecuniary penalty order pursuant to s 116 of the Proceeds of Crime Act 2002 (Cth). Dr Fysh was found guilty by a jury of those two offences in separate criminal proceedings.
The parties agreed that the Commissioner should pay Dr Fysh's costs in connection with the determination as to quantum. However, the Commissioner contended that Dr Fysh should otherwise pay the Commissioner's costs of the proceedings whereas Dr Fysh contended that the Commissioner should pay Dr Fysh's costs or else that there should be no order as to those costs.
McCallum J considered what was the relevant ‘event’ in the ordinary rule that costs follow the event and concluded that the relevant event was Dr Fysh's amenability to a pecuniary penalty order which arose upon his offending conduct.
It was ordered that the Plaintiff pay the costs of the Defendant in connection with the determination of quantum of the penalty and that the Defendant pay the Plaintiff's costs of proceedings but for the costs of the Plaintiff in connection with the determination of the quantum of the penalty.
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – GENERALLY – where two proceedings heard together – where plaintiff failed in first proceeding and succeeded in second proceeding
Superyacht Technologies Pty Ltd v. Mackeddie Marine Pty Ltd & Ors (No 2)  QSC 11
Judgment was given by Applegarth J on 13 December 2012 with costs reserved. Submissions were made in writing. The Plaintiff sought an order that the Defendants pay its costs of both proceedings, reduced by 25 per cent on account of the outcome in the first proceeding. The Defendants submitted that the first proceeding having been lost, the Plaintiff should pay the Defendants’ costs of that proceeding, including reserved costs. The Defendants submitted that the costs of the second action should be:
(a) that the Defendants should pay the Plaintiff’s costs, fixed at $15,000 (being the cost of such an application); and
(b) that be set off against an order that the Plaintiff pay the Defendants’ costs thrown away by the amendments to the pleadings and concerning the issue of joinder of the Third and Fourth Defendants.
In relation to the first proceeding (4097 of 2010), the Plaintiff lost this proceeding and Applegarth J was not satisfied that there was any good reason to displace the general principle that costs should follow the event. It was ordered the Plaintiff pay the Defendants costs of and incidental to the proceeding, including reserved costs, to be assessed on the standard basis.
In relation to the second proceeding, 11982 of 2010, the issue of whether it was the effective cause of the relevant sale was abandoned with no explanation and unnecessary costs were incurred in arguing issues of joinder and whether the proceedings were properly constituted. His Honour Justice Applegarth stated that the order for costs should reflect the success of the Plaintiff in the second proceeding on the only issue that was finally litigated at trial, namely the issue of construction. The order for costs should also make adjustments in respect of the Plaintiff’s conduct of the proceedings in relation to issues which were raised and later abandoned and the costs generated by the late joinder of necessary parties. It was ordered that the First and Second Defendants pay 60 per cent of the Plaintiff’s costs of and incidental to the proceeding, including reserved costs, to be assessed on the standard basis.
Barescape Pty Limited as trustee for the V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor (No 12)  NSWSC 1591
Black J delivered his principal judgment in the proceedings on 27 August 2012, and further judgments on 25 October 2012 and 13 November 2012. The question of costs remained outstanding.
Section 98(1) of the Civil Procedure Act 2005 (NSW) relevantly provides that:
"Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court; and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis."
Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that, where the Court makes an order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. The principles underlying an award of costs include that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful party should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tas)  HCA 48.
Black J considered the issue of whether the results of the Statement of Claim and the Cross-Claim should be aggregated and the costs of the proceedings should be determined on that basis. Where a claim and cross-claim raise essentially different issues and a plaintiff succeeds in the claim and the defendant on the cross-claim, there should generally be separate judgments on the claim and the cross-claim with the plaintiff having the costs of the claim and the defendant having the costs of the cross-claim, although a special order may be made if the issues are interlocked: Chell Engineering Ltd v Unit Tool & Engineering Co Ltd  1 All ER 378. Black J considered that this was not a case that warranted a special order based on an aggregation of the results of the claim and cross-claim.
The Plaintiffs sought an order that each party pay their own costs of the hearing up to 1 September 2011 and that the Defendants/Cross-Claimant pay their costs of the proceedings, including the costs of and incidental to the Cross-Claim, from 2 September 2011 on an indemnity basis. The Plaintiffs relied on a Calderbank offer made on 1 September 2011 to seek indemnity costs of the proceedings after that date.
The making of a Calderbank offer does not automatically result in a favourable costs order, even if the judgment is more favourable to the party making the offer than the terms of the offer. An entitlement to indemnity costs under a Calderbank offer requires that the offer represent a genuine element of compromise of the dispute and that it was unreasonable for the defendants to reject it, when viewed in light of the circumstances existing at the time of its rejection: Seven Network Ltd v News Ltd  FCA 1489. Black J considered recent cases in relation to Calderbank offers including Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo)  NSWSC 816 and Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2)  NSWCA 344. After considering all the relevant principles and authorities, Black J concluded that the Plaintiffs' claim for indemnity costs of the proceedings after 1 September 2011 was not established.
The Defendants accepted that they should be ordered to pay the Plaintiffs' costs of the Statement of Claim between 26 November 2009 and 30 March 2010 however they contended that the Plaintiffs should pay their costs of the Statement of Claim from 30 March 2010. The latter contention was not accepted by Black J. It was ordered that the Defendants should pay the Plaintiffs' costs of and incidental to the determination of the Statement of Claim as agreed or as assessed.
In relation to the costs of the cross-claim, Black J considered relevant authorities in relation to apportionment of costs between issues. Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount. A court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice: Chen v Chan (No 2)  VSCA 233.
Black J considered that this was not a proper case to subdivide costs to seek to exclude or adjust for the costs of subordinate issues. The Court may exercise its powers under s 98(4) of the Civil Procedure Act where the recoverable costs of a party are otherwise likely to be excessive in the circumstances. Black J had regard to several matters in determining whether to order that costs of the Cross-Claim be allowed in full, as a specified percentage of assessed costs or capped at a specified sum. Relevant factors included the parties' relative responsibility for the costs incurred; the degree of disproportion between the issues litigated and the costs claimed; the complexity of the proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability. It was determined that the Court should exercise its power under s 98(4)(b) of the Civil Procedure Act to limit the proportion of assessed costs recoverable on the Cross-Claim. It was ordered that the Plaintiffs should pay 80% of Bacchus' costs of and incidental to the determination of the Cross-Claim against them as agreed or as assessed.
The Plaintiffs also sought an order that the Defendants pay their costs of and incidental to the tender of reports of the Defendants' accounting expert. The tender of the report was rejected by Black J. This was a discrete issue on which the Plaintiffs were substantially successful and a costs order as sought was made accordingly.
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – CO-DEFENDANTS – JUDGEMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULE
Treton Pty Ltd v HM Australia Holdings Pty Ltd and Anor (No 2)  QSC 78
In his judgement of 21 March 2011, the judge ordered that there be a decree of specific performance of each contract of sale and damages in the sum of $35,499.49 with interest. The judge dismissed the claim against the Second Defendant.
There was no contest as to costs between the Plaintiff and the First Defendant as they should follow the event and the First Defendant would be ordered to pay the Plaintiff’s costs on the standard basis.
In regards to the position between the Plaintiff and the Second Defendant, the Plaintiff submitted it did not fail against the Second Defendant because part of its claim against her was not determined by the judgement. It sought to have the judgement varied so that the claim is only dismissed in relation to certain paragraphs of the Amended Claim.
The judge decided that the order could not be set aside under r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld) as when the order dismissing the claim was made it took effect from that date. Rule 667(2) permits the court to set aside an order if one of the circumstances described was present. The judge held that none of those circumstances were present in this case. Specifically r 667(2)(d) would not apply as the order did reflect the court’s intention at the time the order was made.
The Plaintiff’s case against the Second Defendant was described as being alternative to that against the First Defendant and there was no argument as to whether the Plaintiff should recover any amount from the Second Defendant in the event that it succeeded in obtaining a decree of specific performance against the First Defendant.
Paragraph 11 of the Claim did not identify the money judgement which was sought against the Second Defendant and this was not addressed by counsel for the Defendants, no doubt because they understood from the way in which the Plaintiff’s case was presented that the claims were in the alternative to the claims for specific performance.
The judge said that it would now be unfair to allow the Plaintiff to depart from the way in which its case was so clearly conducted and in the circumstances, if the judge still had the power to do so, he would not set aside or vary the order he made on 21 March dismissing the claim against the Second Defendant.
On the question of costs, this was a case where the joinder of the Second Defendant was the result of the stance taken by the First Defendant. The Second Defendant raised other defences which, because the contracts were upheld, were unnecessary to determine. However, it could not be said that the case against the Second Defendant was bound to fail for any reason had the contracts been duly voided. As a result, the joinder of a successful Defendant was not only reasonable, but where conduct of the unsuccessful Defendant has been such as to make it fair to impose some liability on it for costs of the successful Defendant.
However, in circumstances where the Defendants had the same legal representation and one is the sole director of the other, it would be unrealistic to make a Bullock or Sanderson Order. The judge thought it more appropriate to order the First Defendant pay the Plaintiff’s costs of the proceedings as against it, but that there be no order for costs on the Plaintiff’s claim against the Second Defendant.
PROCEDURE – COSTS - DEPARTING FROM THE GENERAL RULE – COSTS ON INDEMNITY BASIS - GENERAL RULE – COSTS FOLLOW THE EVENT – THIRD PARTIES
Togito Pty Ltd v Pioneer Investments (Aust) Pty Ltd & Ors (No 2)  QSC 21
The orders made by Margaret Wilson J were:
1. Whether to order Costs of Claim & Counterclaim
Costs follow the event unless the Court otherwise orders. Where a Plaintiff and a Defendant succeed in their respective claim and counterclaim, the Court may award each the cost but it need not necessarily do so.
The judge allowed costs to follow the event of the claim and counterclaim subject to the question whether costs should be assessed on the standard or indemnity basis. In concluding this, the judge made reference to Dixon J in the case Smith v Madden  HCA 19, where it was stated that the party receiving the costs of the claim should recover the general costs and whatever was reasonably incurred in bringing and maintaining or defending the action, and the party receiving costs of the counterclaim should recover the further or increased costs reasonably incurred in bringing and maintaining or defending the counterclaim.
In coming to the decision, the judge observed that there was cross-examination relevant to the counterclaim which was also relevant to credit, and thus allowable on the claim.
2. Whether to order Costs against Smits (a non-party)
The Court may order costs against a non-party, however, exercise this power sparingly and only in exceptional circumstances. Generally when costs are ordered against a non-party, the case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party or some person on whose behalf he or she is acting or by whom he or she is appointed has an interest in the subject of the litigation.
The judge noted that at all material time Smits and his wife were the directors of Togito which was the trustee of a family trust. At all material times, Smit was the driving force behind the litigation and the person who stood to benefit from it. His conduct in both his personal capacity and capacity as a director was at the core of the litigation.
Another relevant factor is whether the non-party was warned that costs might be sought against him. Smits had express notice that Conomos would seek a costs order against him personally before the litigation was commenced.
Due to these factors a costs order was made against Smits.
3. Whether to award costs on a standard or indemnity basis
Costs assessed on an indemnity basis will only be ordered where a case exhibits some special or unusual feature. In Colgate-Palmolive Company v Cussons Pty Ltd  FCA 536, instances whre indemnity costs might be warranted were listed. These were:
The costs were ordered on a standard basis.
Robertson v Hollings (Imagination Television Ltd) & Ors (No 2)  QSC 37
The Third and proposed Fourth Defendants sought costs on the standard basis and submitted that costs should follow the event. The judge thought this appropriate that the costs should follow the event and be awarded in favour of the First, Third and proposed Fourth Defendants on the standard basis.
The Second Defendant sought the costs of both their application for judgement and the Plaintiff’s application for leave on an indemnity basis.
In making an order which departs from the rule, the Court must be satisfied that the proceeding contains some special or unusual feature. The judge made reference to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd  FCA 2002 where His Honour Sheppard J instanced the making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud; misconduct that causes loss of time to the court and the other parties; the fact that proceedings were commenced at or continued for some ulterior motive; or in wilful disregard of known facts; or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; the imprudent refusal of an offer to compromise; and costs against a contemnor.
It was in the judge’s view that there was not sufficient reason to award costs to the Second Defendant on the indemnity basis. The judge believed that Ms Robertson’s beliefs were genuinely held and that the number of attempts at pleadings were the result of her lack of qualifications rather than any malice or ulterior motive. The judge also believed that there was no indication that the proceedings were brought in bad faith.
Re Keane; Mace v Malone (No. 2)  QSC 98
The unsuccessful Applicant submitted that this was a unique case in which costs should not follow the event and that each party should bear its own costs.
The Respondent sought costs to be paid out of Patrick’s estate.
The Court also received submissions from The Public Trustee on behalf of Patrick who submitted that Patrick was a person under a disability. He is in his advanced years in a nursing home in Toowoomba. It was submitted that his inter vivos estate should not be further diminished so as to deprive him any part of it for his personal use and well being simply because members of his family have sought to engage in litigation in which he has played no part.
The judge accepted the submissions of The Public Trustee and stated that the benefit of success in this piece of litigation was and is for the Respondent who has protected their ultimate entitlement to receive Patrick’s estate when he dies. In the judge’s view there was no reason to depart from the general rule as to costs and subsequently he ordered that the Applicant pay the Respondent’s costs of and incidental to the application on the standard basis.
Morrison v Broadbent & Anor [No 2]  QSC 150
The Applicant was successful in her application against the First Respondent but unsuccessful in her application against the Second Respondent.
The applicant did not seek her costs against the First Respondent and the First Respondent consented to the order sought by the Applicant that there would be no order as to costs against him.
In regard to the Second Respondent, the general rule as to costs in r 681 of the Uniform Civil Procedure Rules 1999 (Qld) is "Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise" and the general rule is that they are ordered on the standard basis.
The judge was not satisfied that there was any good reason to depart from the usual rule that the unsuccessful party, the Applicant, should pay the costs of the application of the successful party, the Second Respondent, on a standard basis. Nor was the judge satisfied that the First Respondent should have to bear the costs by way of a Bullock order as the Applicant submitted. Accordingly, she ordered that the Applicant pay the Second Respondent’s costs of and incidental to the application to be assessed on a standard basis.
McGrath Corporation Pty Ltd v Global Constructions Management (Qld) Pty Ltd & Anor (No 2)  QSC 284
The primary objective of an award of interest is to compensate a Plaintiff for the loss suffered as a consequence of being deprived of the damages.
In this case, the Plaintiff borrowed funds from Westpac at a rate of about nine percent. Therefore to properly compensate the Plaintiff, the judge adopted the same rate of interest as they were being charged by the bank instead of the 10 percent rate that was prescribed for default judgements pursuant to Practice Direction 6 of 2007.
In relation to costs, the First Defendant submitted that the Court should exercise its discretion under r 684 of the Uniform Civil Procedure Rules 1999 (Qld) to award them their costs in respect of those parts of the proceedings where the Plaintiff had been less than completely successful. Alternatively, they submitted the Court should reflect the lack of complete success by only awarding the Plaintiff part of its costs and submitted that an appropriate reduction would be 20 percent. To support this, they pointed to a number of issues including the Plaintiff’s failed claim for "termination costs", their claim for director’s salaries which was abandoned and the Plaintiff’s persistence in pursuing the claim in respect of 155 days of delay.
The judge believed that this was not an appropriate case to exercise the discretion conferred by r 684 as the circumstances were not particularly exceptional.
However, the judge did believe there was merit in making a small reduction in the award for costs to reflect the fact that the Plaintiff not only failed to establish the case it pursued in respect of 155 days delay, it contributed unnecessary cost at trial by the unexplained late disclosure of documents which were clearly relevant to that issue and which contributed to finding against the Plaintiff in respect of that part of the claim.
He considered it appropriate that the First Defendant pay 95% of the Plaintiff’s costs of and incidental to the proceeding.
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSTED – POWERS OF THE COURT - COSTS
Mbuzi v Favell  QCA 17
Application for Extension of Time and Leave to Appeal
The Applicant filed an application for an extension of time within which to appeal and for leave to appeal against a judgement for $15,000 as damages for defamation, with interest and costs, given in the District Court on 18 Nov 2005.
The proposed appeal is more than five and a half years out of time. The Applicant argued that the lengthy delay was explicable by evidence the Respondent gave at the trial that he was not interested in getting money from the Applicant but simply wanted to clear his name. Fraser JA with whom White JA and Daubney J agreed, believed that the Applicant’s misconstruction of the Respondent’s evidence did not supply a reasonable explanation for the Applicant’s extraordinary delay in applying for leave to appeal.
As to the merits of the proposed appeal, Fraser JA reached the conclusion that regardless of the suggestion that there is merit in the appeal, he would reject the Applicant’s argument that the trial judge was mistaken in holding that the defamatory publication was not protected by absolute privilege. He also believed that the Applicant’s argument that there was significant factual mistake made by the trial Judge had plainly no substance. This is because it was based upon the proposition that an answer given by the Respondent in evidence that he could not recall the extent of his involvement in the earlier litigation must be presumed to have been false and deliberately so.
Fraser JA ordered that the application be refused, with costs.
Basis of costs – standard or indemnity
Fraser JA believed that there was no reason why the costs should not follow the event in this case.
The Respondent applied for costs to be assessed on the indemnity basis and Fraser JA accepted this with the reasoning of:
Martens v Stokes & Anor  QCA 71
Margaret Wilson AJA with whom White JA and Margaret McMurdo P agreed, ordered that:
The Appellant failed on the two principal issues argued on appeal – whether his claim was within the scope of Personal Injuries Proceedings Act 2002 (Qld) ("PIPA") and the implications of federal jurisdiction. This Court held that in so far as his claim was one for personal injuries it was within the scope of PIPA. However, his Statement of Claim was so badly done that it was unclear if some of his claims were beyond the scope of the Act. Due to this the Court gave him the opportunity to re-plead. Therefore, the judge decided that there should be no order as to the costs of appeal.
As the primary judge’s order striking out the claim was set aside on appeal, Margaret Wilson AJA believed the orders as to costs should be also set aside and replaced.
Laing v Southern QLD Regional Parole Board (No 2)  QSC 352
The Applicant’s application was dismissed and the Respondent sought costs. The Applicant was a prisoner without legal representation and as such the Judge requested the Respondent provide him with submissions on costs. As no response was received, the judge believed that there was no reason why costs should not follow the event and ordered the Applicant pay the Respondent’s costs of and incidental to the proceedings.
Avis & Anor v Mark Bain Constructions Pty Ltd [No 2]  QSC 151
Under s 47(1) of the Supreme Court Act 1995 (Qld), the Court may order that interest be included in the sum for which judgement is given, at such a rate as it thinks fit on the whole or any part of that sum for the whole or any part of the period between the date when the cause of action arose and the date of judgement. The purpose of this award of interest is to compensate a party for being without its money.
The judge decided that it would be inappropriate to apply commercial bank rates as those rates are essentially compound rates of interest because interest is paid on interest. The Court will ordinarily apply the simple interest rate used in the Practice Directions.
As such, interest is payable pursuant to Practice Direction No 2 of 2002, with a rate of 9% per annum for the period from 9 June 2004 to 30 June 2007 and a rate of 10% per annum as per Practice Direction No 6 of 2007 from 1 July 2007 to 11 April 2012.
Accordingly, Mark Bain Constructions was ordered to pay Mrs Avis interest in the sum of $185,471.70 and to Barnscarpe in the sum of $141,419.75.
Under r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld), costs of a proceeding are in the discretion of the Court but follow the event unless the Court otherwise orders. Although there were various settlement negotiations the judge was of the view that they were not relevant to the question of costs. Accordingly, the costs order made was that the First Defendant pay the Plaintiff’s costs of the proceedings to be assessed on the standard basis and the Plaintiff’s pay the First Defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including the First Defendant’s costs of obtaining the further expert report ordered on 16 April 2010.
ADMINISTRATIVE LAW – ACCESS TO INFORMATION – Right to Information – General procedure – COSTS – GENERAL RULE – costs follow the event – costs of whole action - generally
Davis v City North Infrastructure Pty Ltd (No 2)  QSC 312
Costs of a proceeding are in the discretion of the Court but follow the event, unless the Court orders otherwise. The judge in this case decided not to exercise his discretion on costs due to the Respondent being a substantially owned government entity. The judge considered it appropriate that no order was to be made as to costs.
The Applicant was a secretary of a community group which is comprised by and represents the local residents affected by projects undertaken by the Respondent. The application involved judicial determination of "a public authority" and "an agency" under the Right to Information Act 2009 ("the Act"). Although the Applicant did not invoke the nebulous concept of public interest litigation there is a public interest in obtaining determination of the issues, particularly in the circumstances where the Information Commissioner ruled the Act applied to the Respondent and QCAT set aside that decision. The resolution of the issue also benefited the Respondent in that the issue of statutory interpretation would guide other members of the public as to whether to make applications to the Respondent pursuant to the Act. The judge accepted that the Applicant was motivated by a desire to clarify an important point of statutory interpretation.
Applegarth J found that the fact that the determination would have significance for the Respondent in dealing with applications that might be made by other citizens to it pursuant to the Act was not enough to require the Respondent to bear its own costs. However the fact that the decision has implications for the respondent beyond the Applicant’s specific request was a relevant consideration. It was ordered that there be no order as to costs.