Federal Court of Australia

Crawford v State of Western Australia (No 2) [2025] FCAFC 48

ORDERS

THE COURT ORDERS THAT:

1.    The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 25 February 2025, the Court made orders dismissing this appeal and delivered reasons in Crawford v State of Western Australia [2025] FCAFC 18 (appeal reasons). The orders also provided for the parties to file written submissions in relation to the costs of the appeal, with that question to be determined on the papers. Both parties filed written submissions on 25 March 2025.

2    These reasons concern the question of costs and assume familiarity with the appeal reasons.

3    The appellant seeks an order that the parties bear their own costs of the appeal. The appellant submits that the appeal: (i) was a proceeding with a public interest character as it concerned judicial independence and the constitutional limits of legislation affecting judicial officers; (ii) was not brought for the appellant’s personal gain; and (iii) raised novel questions about the relevant legislation which had not before been tested. The appellant says that those factors support the exercise of the Court’s discretion to decline to make the usual order that costs follow the event.

4    The appellant also seeks a variation to the costs order made by the primary judge on 12 March 2024 which was to the effect that that she pay the respondent’s costs of the application at first instance. The appellant seeks an order that each party bear its own costs of the application at first instance for the same reasons as she argues with respect to the costs of the appeal. The appellant acknowledges that she had not raised a ground of appeal with respect to the costs order made at first instance, but argued that the Court has a broad power to substitute an appropriate order as to costs at first instance.

5    The respondent seeks its costs of the appeal and says there should be no variation to the costs order made at first instance. The respondent says that this is not a case in which there are special circumstances which justify a departure from the usual order that costs follow the event and that the successful litigant receives it costs.

6    Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the court a broad discretion in awarding costs. The discretion must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation: Northern Territory v Sangare (2019) 265 CLR 164 (Sangare) at [24]. While not a rigid rule, usually the discretion to award costs is exercised in favour of a successful party: Oshlack v Richmond River Council (1998) 193 CLR 72 (Oshlack) at [35] (Gaudron and Gummow JJ), [66]-[67] (McHugh J) and [134] (Kirby J); Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [25] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Sangare at [25]. The basis for this “usual order as to costs” is not to penalise a losing party, but compensate a successful party against the costs incurred by reason of the legal proceedings: Oshlack at [67] (McHugh J).

7    Where a proceeding has a public interest character and raises a novel question of general importance and some difficulty, the court may decline to order costs against an unsuccessful party: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 (Ruddock) at [17] and [18] (Black CJ and French J). However, asserting that proceedings are in the “public interest” is not sufficient of itself to justify such an order; there must be special features of the case which justify a departure from the usual rule as to costs: Ruddock at [14] and [19]. Similarly, the mere fact that a party has raised constitutional arguments will not result in the litigation being treated as public interest litigation, and the merit of the constitutional arguments raised is relevant to determining whether special circumstances exist which justify a departure from the usual order as to costs: Keo v Minister for Immigration and Citizenship (2009) 177 FCR 479 at [37]-[38].

8    In our view, a departure from the usual rule that costs follow the event is not justified in this case. It may be accepted that these proceedings raised, in part, potential questions of public importance regarding judicial independence. It may also be accepted that the proceeding was not brought for the appellant’s personal financial gain. Nevertheless, the proceeding principally concerned the interests of the appellant, and the relief sought by the appellant principally concerned the validity of decisions made under the Children’s Court of Western Australia Act 1988 (WA) that were directed to her personally. Further, while the proceeding raised novel questions about the Courts Legislation Amendment (Magistrates) Act 2022 (WA), grounds 1 and 2 of the appeal were based on a misunderstanding of the primary judge's findings (appeal reasons at [55]) and ground 3 was based on an incorrect construction of the legislative scheme (appeal reasons at [116]). As a result, the potential questions of public importance identified by the appellant did not ultimately arise on the appeal.

9    It follows from the foregoing that we also reject the appellant’s application to vary the costs order made by the primary judge. It should also be recorded that the appellant’s application to vary the costs order made by the primary judge is procedurally incompetent, and we would reject the application on that basis as well. As costs orders are interlocutory, the appellant required leave to appeal to reopen the costs order made by the primary judge: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) (2023) 299 FCR 224 at [13]-[14]. No such application was filed by the appellant (and, of course, any such application is now out of time). The appellant did not address any submissions to the question of the grant of leave to appeal. Nor did the appellant address any submissions to the critical question whether the primary judge’s determination of costs involved error of the kind discussed in House v The King (1936) 55 CLR 499. As has been stated on many occasions, the appellate jurisdiction of the Court is confined to the correction of error.

10    For the foregoing reasons, the appropriate order to be made is for the appellant to pay the respondent’s costs of the appeal.

Associate:

Dated:    9 April 2025