FEDERAL COURT OF AUSTRALIA

Bahonko v Nurses Board of Victoria (No 5) [2007] FCA 1591

COSTS — discretion conferred upon court by s 43(2) of the Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation — ordinary rule is that costs follow the event

Federal Court of Australia Act 1976 (Cth), s 43(2)

Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 cited

Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 cited

Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136 cited

Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 cited

Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 cited

STANISLAWA BAHONKO v NURSES BOARD OF VICTORIA AND FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE

VID 855 OF 2006

MIDDLETON J

18 OCTOBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applicant pay the first respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 14 September 2007 the Court ordered that the applicant’s motions, notices of which were dated 22 September 2006, 3 October 2006, 31 October 2006, 27 February 2007 and 28 May 2007, be dismissed and that the application for leave to file the application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) out of time be refused.

2                     I directed the parties to file submissions as to costs.

3                     The first respondent sought that the applicant pay the first respondent’s costs of the proceeding, other than those costs dealt with in the orders made on 5 April 2007.  The second respondent sought no order as to costs.  The applicant sought orders as to costs against both respondents, and also Russell Kennedy.

4                     Other than those matters already dealt with on 5 April 2007, the respondents have been successful in resisting the application and the applicant’s various notices of motion brought in this proceeding: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449.  The Court has already made costs orders in respect of the issues decided in the applicant’s favour on 5 April 2007. 

5                     The first respondent submits that the usual rule that costs should follow the event in respect of the matters decided on 14 September 2007 should be applied.

6                     The discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) is a wide and comprehensive one – attempts to narrow the discretion have not been successful: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496; Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 at [5].

7                     The discretion is not unfettered – it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485.

8                     Pursuant to my direction, the applicant filed written submissions as to costs.  In essence, many of the claims made in these submissions were a reiteration of the claims made in the proceedings before me, which claims were unsuccessful.  I need not rehearse all the allegations asserted in the written submissions of the applicant.

9                     I find that the applicant has not shown anything in the behaviour or actions of the respondents or Russell Kennedy in connection with these proceedings which would be a basis for departing from the usual rule that the applicant (as the unsuccessful party) pay the costs of the first respondent (a successful party).  I find no basis for ordering that either the respondent or Russell Kennedy pay the costs of the applicant, and refuse the applicant’s application for costs.

10                  Accordingly, I will order that the applicant pay the first respondent’s costs of the proceeding.

Associate:

Dated:         18 October 2007