FEDERAL COURT OF AUSTRALIA

Australian Communications and Media Authority v Clarity1 Pty Ltd
(ABN 60 106 529 604) [2009] FCA 81

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v CLARITY1 PTY LTD (ABN 60 106 529 604) and WAYNE ROBERT MANSFIELD

WAD 155 of 2005

MCKERRACHER J

12 February 2009

PERTH

THE COURT ORDERS THAT:

1.                  The applicant do pay 50% of the second respondent’s costs of the application.

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 20 June 2008 the second respondent, Mr Mansfield filed a motion seeking to set aside a costs order of a Deputy District Registrar made on 31 October 2007.  He also sought leave to file and serve a notice of objection to a costs estimate contained in a certificate dated 20 September 2007. 

2                     ACMA opposed the granting of each of those orders.  I was satisfied that the orders should be made:  see Australian Communications and Media Authority v Clarity1 Pty Ltd (ABN 60 106 529 604) [2008] FCA 1449 (the primary judgment). 

3                     Mr Mansfield has now sought the costs of his successful application.  ACMA also opposes the award of costs notwithstanding Mr Mansfield’s success.  

4                     The basis upon which Mr Mansfield sought an order setting aside the 31 October 2007 order was that he had not been validly served with the certificate by ACMA.  Several arguments were advanced in relation to that issue.  Ultimately I was satisfied that it was an appropriate circumstance for the setting aside of the 31 October 2007 order.

5                     Section 43(2) of the Federal Court of Australia Act 1976 (Cth) vests a discretion as to the award of costs in the Court.  While costs usually follow the event, that is not always so.  The power contained in s 43 is to be exercised judicially and not arbitrarily, capriciously or so as to frustrate the legislative intent (Oshlack v Richmond River Council (1998) 193 CLR 72 at [22]). 

6                     There was substantial delay on the part of Mr Mansfield in bringing the application.  No adequate explanation was given for that delay, although an inference was drawn that because he was not, at the relevant time, legally represented, he did not understand his rights (primary judgment at [59]). 

7                     One of the grounds upon which a successful litigant may be deprived of all or part of his or her costs may include unreasonable delay in exercising his or her rights or in the manner in which those rights are exercised.  This is especially so where the unsuccessful party has incurred additional expense or prejudice as a result of that delay. 

8                     I am satisfied that it was appropriate for ACMA to resist the application to set aside the costs order as there was no adequate explanation to justify the delay in pursuing the application.  On the other hand, while it might be regarded as something of a technicality nevertheless ACMA was, according to my primary reasons, at fault in failing to validly serve the relevant certificate. 

9                     In my view the question is whether Mr Mansfield has made good an argument that he should be entitled to any portion of his costs. 

10                  I consider that the appropriate order which reflects a balance between both the unexplained delay and the successful application, is that ACMA should pay 50% of Mr Mansfield’s costs of the application.  I will so order.

Associate: 

Dated:         12 February 2009