FEDERAL COURT OF AUSTRALIA

GG v Australian Crime Commission (No 2) [2010] FCAFC 63

THE COURT ORDERS THAT:

1.         Orders 3(b) and 4 made on 26 February 2010 be set aside.

2.         In place of those orders, it be ordered that there be no order as to costs either at first instance or on appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          In the orders which we made in this appeal on 26 February 2010 (see GG v Australian Crime Commission [2010] FCAFC 15), we set aside the orders made by the primary Judge, and we ordered that the respondents to the appeal pay the appellant’s costs, both at first instance and on appeal.  However, we gave the parties liberty to apply for variation of those costs orders.  The parties did file written submissions on costs, the appellant seeking to uphold the orders which we provisionally made on 26 February, and the respondents arguing that there had been many issues upon which the appellant had failed, not only on appeal but, perhaps more conspicuously, before the primary Judge, and that that circumstance should be reflected in the costs orders made on appeal. 

2                          Having considered the matter, we take the view that the appropriate costs orders to make would be those which accord with the conventional approach that costs should follow the event, but which recognise that there were two events as to which the appellant litigated, both at first instance and on appeal.  As is clear from our reasons on 26 February 2010, the appellant challenged the validity of the determination of the Australian Crime Commission establishing the special investigation.  The alleged invalidity of the determination was not simply a ground upon which the appellant sought to challenge the validity of the summons which required him to attend before the examiner: it was the subject of a free-standing application for a declaration in itself.  That was a serious challenge to which the respondents were required to give separate attention in its own right.  The success of that challenge would have had consequences which reached well beyond the appellant’s direct interest in avoiding the obligations which fell upon him pursuant to the summons. 

3                          The appellant wholly failed on his challenge to the determination, both at first instance and on appeal.  To that extent only, the respondents would be entitled to retain the costs order made by the primary Judge in their favour, and to secure a costs order from us in relation to the appeal.  However, the appellant succeeded in his challenge to the summons.  To that extent, he would be entitled to his costs before the primary Judge, and on appeal.  Because each side effectively succeeded on about half the case, subject only to the matters to which we shall refer in the next paragraph, we consider that an appropriate and just outcome would be for no party to pay the other side’s costs, either before the primary Judge or on appeal. 

4                          Even with respect to that part of the case upon which the appellant succeeded, the respondents argued that there were many issues raised before the primary Judge and, albeit to a lesser extent, before us on appeal, upon which the appellant ultimately failed.  The respondents relied upon the judgment of Black CJ and French J in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 234-241.  It was argued on behalf of the respondents that the appellant, although successful in the result, had failed on certain issues which never had any prospect of succeeding, and that it was reasonable not only for him to be deprived of his costs in relevant respects, but for him to be required to pay the respondents’ costs. 

5                          While we appreciate the force of the points made on behalf of the respondents, and would not wish to give any encouragement to the raising of numerous issues of doubtful quality, ultimately we are not persuaded to exercise our discretion in the way for which the respondents contend.  A party with a single cause of action, or who seeks a single outcome from litigation, should generally be entitled to bring forward all the arguments and propositions, expressed in the alternative, which might yield success for him or her.  Indeed, consistent with the principles for which Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 stands, a party is under an obligation to do so.  If the party ultimately succeeds, generally speaking, but subject to the principles referred to in Ruddock v Vadarlis, the party should be regarded as having succeeded in the event, and thus as being entitled to his or her costs. 

6                          Although the appellant’s claims in relevant respects before the primary Judge were pressed by reference to various arguments, advanced in the alternative, which were ambitious, we are not persuaded that it was inappropriate of him to have proceeded in this way.  In the circumstances, therefore, we do not consider this to be an occasion to depart from the general rule that costs should follow the event, insofar as the appellant’s challenge to the summons (as distinct from the determination) is concerned.

7                          For the above reasons, we propose to alter the orders which we made on 26 February 2010 so as to produce a result in which neither side pays the other’s costs, either at first instance or on appeal.

Associate:

Dated:         4 June 2010