FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2015] FCA 1266

THE COURT ORDERS THAT:

1.    The applicant pay those costs of the first respondent which have been previously ordered, namely the first respondent’s costs as ordered or reserved by Emmett J on 15 December 2010, 18 February 2011, 7 June 2012 and 30 August 2012.

2.    In addition to the costs to be paid pursuant paragraph 1 of these orders, the applicant pay half of the first respondent’s party/party costs on and from 22 May 2014 until 24 July 2015, including its costs of the adjournment application filed by the applicant on 10 October 2014.

3.    The applicant pay the second respondent’s costs fixed in a lump sum of $10,000.

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

REASONS FOR JUDGMENT

1    On 24 July 2015 I made orders in this proceeding, dismissing the applicant’s proceeding: Spencer v Commonwealth of Australia [2015] FCA 754. I set a timetable for submissions and evidence on the question of costs, issues about the costs of this proceeding having been a feature of statements and submissions by all parties throughout that part of the proceeding for which I have had case management responsibility. My reasons for judgment in the substantive proceeding provided expressly for submissions on whether a lump sum costs order should be made.

2    In submissions which continue to reflect the gulf of fact and law between the parties to this proceeding, the parties have taken very different approaches to the way the Court should exercise its broad discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) in relation to the costs of this proceeding.

3    An order for costs against an unsuccessful applicant, if made, recognises that in an appropriate case such an order is a “necessary consequence of a party having created a litigation in which [she or he] has failed”: see Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 at [34], referring to Daniell’s Practice of the High Court of Chancery, 5th ed (1871) vol 2, p 1239.

4    Nevertheless, for a variety of reasons I set out below, I have decided that it would not be in the interests of justice for “the usual order” as to costs to be made against the applicant. Instead, I have decided there should be limited and relatively modest costs orders made in favour of both respondents. The State’s submissions indicate it is content with such an order; the Commonwealth’s submissions indicate the contrary.

THE PARTIES’ RESPECTIVE POSITIONS ON COSTS

5    The Commonwealth’s primary submissions on costs were very brief, and were not accompanied by any affidavit evidence. It sought the usual orders as to costs, from the time the matter was remitted by the High Court to this Court. In reply the Commonwealth did little more than deny some of the propositions in Mr Spencer’s submissions.

6    In contrast, the State’s submissions were quite detailed, and accompanied by an affidavit supporting its application for a very modest award of costs by way of a lump sum.

7    Mr Spencer filed some affidavit material, some of which I consider to be relevant to the appropriate costs orders, some of which is not relevant to those issues, some of which should be disregarded and some of which was argumentative and I have treated as a submission. Mr Spencer’s submissions ranged widely. At one point he contended the Commonwealth and State should pay their own costs, at another he contended the respondents should pay his costs and expenses. I have treated those as submissions in the alternative.

8    In a matter with as long and as complicated a history as this proceeding, and where the parties’ respective positions are so far apart, it is necessary to have a working understanding of the course the proceeding has taken, in order to determine where the interests of justice lie in relation to the costs discretion. Although a sense of fatigue in the Commonwealth about this matter may be detectable in its approach to costs, and at one level such fatigue is unsurprising, it should nonetheless be observed that the Commonwealth’s somewhat bald approach on costs is of little assistance. My understanding of the course of the proceeding has been informed by the State’s evidence, but otherwise it is necessary to try and trace the history of the proceeding through the Court’s files and the reported interlocutory decisions.

APPLICABLE PRINCIPLES

9    The breadth of the discretion in s 43 is well established, as is its capacity to be exercised in a way which fits the individual circumstances of each case. Black CJ and French J (as his Honour then was) in Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9], [11] and [15] made the following observations about s 43 and the costs discretion:

The power of the Court so conferred is not fettered by any stated legislative presumption about the manner of its exercise. That is consistent with the longstanding authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that “the Court has an absolute and unfettered discretion to award or not to award [costs]”: per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case.

…

Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:

•    Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.

•    Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.

•    A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties’ costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.

See Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR ¶40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 at 222.

…

Usually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings. The Federal Court Rules 1979 (Cth) make specific provision for the case in which a judgment is obtained which is not more favourable than terms previously offered by a respondent: O 23, r 11. Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues: see, for example, Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 220; Hughes v WA Cricket Association (Inc); Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272. And a trial judge may award only a proportion of the successful party’s costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings: Latoudis v Casey at 544; Cummings v Lewis (1993) 41 FCR 559; 113 ALR 285 at 602-603; 327 (Cooper J, Sheppard and Neaves JJ agreeing).

See also Seven Network Ltd v News Ltd [2009] FCAFC 166, 182 FCR 160 at [1100]-[1101] and Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14].

10    The categories, or instances, of special circumstances which may lead to the exercise of the costs discretion in a particular way are neither closed nor expressly defined, as the High Court’s decision in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 demonstrates. See also, in a different context, Grass v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 61. The subject matter of the litigation, even when there is a private interest at stake, can be a significant factor: see for example Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241 at [181]-[183]. Considerations of fairness, in the context of a particular proceeding, are important: see Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5].

FACTUAL FINDINGS

11    In the principal judgment at [39]-[42] I set out some of the history of this proceeding, however it is necessary to repeat it here. Mr Spencer commenced this proceeding on 12 June 2007, with the Commonwealth as the only respondent. On 26 July 2007 the Commonwealth filed a notice of motion seeking summary dismissal of the proceeding pursuant to s 31A of the Federal Court Act, which was heard by Emmett J in May and June 2008. On 26 August 2008, his Honour gave reasons why both Mr Spencer’s interlocutory application for interim relief and the proceeding should be dismissed: see Spencer v Commonwealth [2008] FCA 1256. Orders were made on 28 August 2008 dismissing the proceeding: Spencer v Commonwealth (No 2) [2008] FCA 1378. Costs were awarded in favour of the Commonwealth, although discounted because of the element of public interest in Mr Spencer’s claim.

12    Mr Spencer was granted leave to appeal the decision of Emmett J on 9 October 2008. The appeal was heard by a Full Court in February 2009 and, on 24 March 2009, the Full Court dismissed Mr Spencer’s appeal: Spencer v Commonwealth [2009] FCAFC 38; 174 FCR 398. Costs were awarded in favour of the Commonwealth.

13    Mr Spencer sought special leave to appeal to the High Court. After some delay occasioned by a case with some related legal issues (Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; 240 CLR 242), on 12 March 2010 Mr Spencer’s application for special leave was referred to an enlarged full court for argument as on appeal: Spencer v Commonwealth [2010] HCATrans 55, and argument was heard on 16 June 2010. On 1 September 2010 the High Court granted special leave to appeal, allowed Mr Spencer’s appeal, set aside the orders of the Full Court and Emmett J and dismissed the Commonwealth’s application for summary dismissal: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118. An order for costs was made in Mr Spencer’s favour. The terms of that order awarded Mr Spencer his costs of the application for special leave and the appeal to the High Court, the costs in the Full Court of the Federal Court and the costs of the Commonwealth’s motion before Emmett J.

14    Following the High Court decision, the proceeding returned to the docket of Emmett J, with the State of New South Wales being formally added as second respondent on 12 November 2010, although the Court’s file suggests the State had appeared before this date.

15    The Commonwealth’s submissions on costs take as the appropriate starting point the remitter to Emmett J, and the State’s approach is consistent with this.

16    Mr Spencer’s further amended statement of claim was filed on 14 February 2011. It is appropriate to see that as the time at which the proceeding “began again”, so to speak.

17    After February 2011, there were ongoing issues about discovery – both its scope, and the respondents’ compliance with orders made. At all times during this process Mr Spencer was legally represented.

18    Orders as to discovery by each respondent were made on 31 May 2011, and in respect of the Commonwealth were made by consent.

19    As part of compliance with those orders it seems, claims of public interest immunity were made by the Commonwealth over documents contained in Cabinet files and relating (by way of a general description) to issues of climate change, natural resource management and negotiations with the States on those issues. Those claims were heard in an interlocutory hearing in April 2012, almost 12 months after the orders for discovery were made. Why the discovery process had only advanced to that stage in 12 months is unexplained on the evidence before me, or in the reported decisions.

20    On 7 June 2012, Emmett J upheld the Commonwealth’s claims of public interest immunity: see Spencer v Commonwealth of Australia (No 3) [2012] FCA 637, and ordered that the Commonwealth’s costs in relation to the question of public interest immunity be costs in the proceeding. It was these kinds of claims by the Commonwealth which fuelled Mr Spencer’s apprehension that the Commonwealth was hiding documents which could prove the case he wished to make against the Commonwealth about an informal agreement to achieve its goals of reduction in native vegetation clearance. An appeal from Emmett J’s decision on public interest immunity was dismissed by the Full Court in November 2012: Spencer v Commonwealth of Australia [2012] FCAFC 169; 206 FCR 309. Mr Spencer was ordered to pay the Commonwealth’s costs of the appeal, although provision was made for further submissions on a foreshadowed additional claim by the Commonwealth for indemnity costs in relation to one aspect of the appeal:

In respect of the bundle of documents referred to in paragraph 59 of the reasons for judgment and the notice to produce dated 2 November 2012, leave be granted to the first respondent to file and serve written submissions in support of the first respondent’s foreshadowed application for indemnity costs within seven days, the applicant to file and serve its written submissions on the issue of indemnity costs within a further seven days thereafter, and the first respondent to file and serve any written submissions in reply within a further three days.

21    It appears that material was not filed and instead agreement was reached between the Commonwealth and Mr Spencer, reflected in orders made by consent by the Full Court on 4 December 2012 that in respect of those costs, Mr Spencer pay the Commonwealth’s costs on a party/party basis as agreed or taxed.

22    While that appeal was on foot, discovery was agitated again before Emmett J. In a decision made on 30 August 2012, his Honour refused to order further discovery by way of categories of documents pressed by the applicant, which had not been the subject of the consent orders in May 2011: Spencer v Commonwealth of Australia (No 4) [2012] FCA 1142. From his Honour’s reasons, it seems discovery of these categories was a dispute which predated the May 2011 consent orders, but had been held in abeyance for some time while the agreed aspects of discovery proceeded and inspection occurred. On 30 August 2012 Emmett J reported in his Honour’s reasons that, amongst other things, inspection of documents was still not complete. His Honour raised with the parties (it appears from the reasons at [12]) the suggestion that discovery issues could be referred to a referee, or to mediation. It does not appear either of these events occurred. Mr Spencer was ordered to pay the Commonwealth’s costs of 30 August 2012 and the costs of the discovery application were otherwise to be the parties’ respective costs in the proceeding.

23    Some impression of the nature and extent of the discovery issues in this case can be gleaned from the affidavit filed in relation to costs by the State. Ms Namey, a solicitor for the State, deposes as follows:

Additionally, in August 2013, five members of the junior bar were engaged to assist in reviewing documents for the purpose of discovery. Counsel fees for this task were $125 an hour. Counsel fees for discovery exceeded $80,000.

…

The applicant sought extensive discovery from a number of State agencies. The State gave discovery by categories in multiple tranches. During 2013 large volumes of documents were reviewed for the purposes of discovery. In addition, more limited discovery of documents occurred in 2011, 2012 and 2014.

I am informed by Ms Sasha Lowes, the solicitor with carriage of the matter from March 2013 to February 2014, that most of the documents that were required to be reviewed during 2013 for the purposes of discovery were held in hard copy form. In order to manage the documents for discovery and the matter more generally, the second respondent engaged “e.law” a legal technology service provider in July 2013 to provide an electronic document management system for this matter. Even after being converted to electronic format, not all of these documents were searchable using electronic search terms. Accordingly, a manual review of each of the electronic documents was conducted by solicitors, paralegals and/or counsel.

I am informed by Ms Leonie Taylor, a representative of e.law, that e.law individually scanned and uploaded approximately 90,000 documents, totalling 305,615 pages, onto this system. This involved significant initial time and expense. The documents have been hosted on an online database for which e.law has charged since mid-2013, and continues to charge, a monthly data storage fee. The amount of that monthly data storage fee has varied according to the number of documents being hosted and is presently approximately $5,000. In total e.law costs have exceeded $300,000.

24    In his costs submissions, Mr Spencer reveals, at least in general terms, what appears to have caused his dissatisfaction with the practical outcome of the High Court’s costs orders, although on the surface it would seem he has recovered the costs of this proceeding up until the matter was remitted to this Court in 2010. At [8] he states:

I also ask the Court to note that my lawyers who worked very hard for me did not get the benefit of any costs order made by the High Court because whilst the money was in Mr Gouliaditis the AGS lawyer’s hands after the assessment of costs, my creditors served a garnishee notice on the AGS which then paid all the moneys away, that was then available. Other than an insignificant amount divided amongst the entire legal team. I remain concerned as to how those creditors knew to serve such a notice at the exact correct time so that neither I nor my lawyers benefitted in any way from the High Court order.

25    He submits that, because of the Commonwealth’s unreasonable behaviour, this Court should “refuse all costs to the Commonwealth since the High Court decision”. He goes further and submits that the Commonwealth should pay all his legal costs and expenses, although at one point in his submissions he also includes the State in this further submission.

26    He also identifies the following matters as supporting this outcome:

(1)    the Commonwealth’s history of delay in giving discovery;

(2)    the public interest in the litigation;

(3)    his success on a number of interlocutory issues, and on the issue of whether there was a “taking” of his land, as I determined in the principal judgment: Spencer v Commonwealth of Australia [2015] FCA 754 at [550].

27    As for the State, while Mr Spencer appears to recognise in his submissions that the State has taken a pragmatic approach which is generous to his interests, he nevertheless seeks an order that the State should pay its own costs. He speculates that it is likely the State “is seeking a sum certain so that it can destroy my appeal rights by serving a bankruptcy notice”.

28    The file in Mr Spencer’s proceeding for the period over which he complains about the Commonwealth’s delay in giving discovery informs consideration of Mr Spencer’s allegations about the number of times he had to return to Court, through his lawyers, to try and “force” the Commonwealth to disclose documents.

29    The first notice of motion in that period was filed by Mr Spencer on 12 November 2010 and gave notice of a motion to file a further amended statement of claim and to join the State. Submissions were filed by each party on the motion and affidavits were filed by the Commonwealth and by Mr Spencer.

30    Following that, four notices of motion or interlocutory applications were filed by Mr Spencer seeking discovery from both the Commonwealth and the State: on 6 May 2011, 26 May 2011 (seeking discovery from the State only), 23 August 2012 and 30 November 2012. Affidavit material was filed by the respondents in opposition on each occasion, and in particular a very substantial amount of material was filed in respect of the 30 November 2012 application, with the Commonwealth and the State each filing three affidavits in addition to their outlines of submissions. In addition, the Commonwealth filed from February to May 2012 four affidavits in support of its claim to public interest immunity from discovery, the resolution of which by Emmett J and the Full Court on appeal I have described earlier in these reasons. Over the course of this proceeding since 2010 the respondents have also sought and been granted leave to issue various subpoenas to produce documents.

31    A review of the file reveals that from the time the matter was remitted by the High Court up until (but not including) the final hearing before me, the parties appeared before the Court on at least 35 occasions, on most occasions appearing for directions in respect of, or for the hearing of, Mr Spencer’s discovery applications against both respondents. Appearances were also occasioned by listings for mediation or case management (attended by all parties) and at the returns of subpoenas at which one or the other of the respondents appeared. The State identifies in its affidavit material 21 directions hearings so far as the State is concerned. Although the State also identifies eight interlocutory applications since its joinder, a review of the file indicates the dates identified by the State correspond not to eight discrete applications but to the dates on which the parties appeared before the Court in respect of interlocutory issues. For example, the parties appeared on several occasions in connection with Mr Spencer’s discovery application filed on 30 November 2012. Not all of those directions hearings and interlocutory applications took place during the period from 2011 to 2014, which period, as I explain below, should in my view be considered separately in the exercise of the costs discretion in the particular circumstances of this proceeding.

32    In the absence of detailed evidence from the parties, all I can conclude is that the Court’s file reveals a significant number of interlocutory steps, spread over a long period of time, but provides no sufficient basis for determining which party or parties bear responsibility for what was, on any view, a substantial delay in the completion of interlocutory processes.

33    In his affidavit, Mr Spencer made some assertions about the role of Mr Nick Gouliaditis, the senior solicitor from the Australian Government Solicitor with carriage of the proceeding on behalf of the Commonwealth for most of the duration of the proceeding since its remittal. Mr Spencer made a number of statements in his affidavit about Mr Gouliaditis’ circumstances. For the purposes of exercising the costs discretion and reaching a conclusion on the submissions put by Mr Spencer, I consider I can take judicial notice of the fact that Mr Gouliaditis has been charged, and convicted (after entering a guilty plea) of a number of offences, most of which are drug-related. It is a matter of common knowledge within s 144 of the Evidence Act 1995 (Cth), and the parties have, through Mr Spencer’s affidavit and submissions, had an opportunity to deal with it. I am satisfied there is no unfair prejudice, to the Commonwealth in particular, in my taking it into account in the limited way I propose to do.

34    The Commonwealth has chosen not to answer any of Mr Spencer’s allegations about Mr Gouliaditis and the alleged impact on the way this proceeding was conducted on behalf of the Commonwealth, other than to submit the allegations are irrelevant to the exercise of the costs discretion. Nor has the Commonwealth provided any evidence about this matter, in its reply to Mr Spencer’s submissions.

35    There is currently an insufficient evidentiary basis on which the Court could make positive findings in favour of any of Mr Spencer’s allegations about the impact he alleges Mr Gouliaditis’ conduct (which led to the criminal charges against him and his subsequent conviction) had on the manner in which this proceeding was conducted on behalf of the Commonwealth. There does appear to be considerable overlap in timing, and Mr Spencer deposes expressly to his own observations of Mr Gouliaditis in court on various occasions, and gives descriptions which are not favourable to Mr Gouliaditis in terms of the way one might expect an officer of this Court to perform his duties. It was not unreasonable for Mr Spencer to raise these matters on the question of costs, and my inability to resolve them because of insufficient evidence contributes to my inability to reach a clear view that it is appropriate for Mr Spencer to bear the entire costs burden of this period.

36    In order to attempt to form a view about what Mr Spencer submitted the High Court said concerning the discovery process in this proceeding, I have read the transcript of argument before the High Court on 16 June 2010. It is true to say that in argument, several Justices asked questions about the discovery process, generally directed, it seems to me, to attempt to understand how the “informal agreement” argument had been pleaded and put, if at all, to that point and what obligations the Commonwealth might have had, at the time of the s 31A application, to make discovery. Ultimately, as part of its consideration of the application for special leave to appeal, the High Court required copies of all notices to produce (the matter being at a stage before Emmett J where it was too early for orders for discovery as such) served by the applicant on the Commonwealth to be provided to the Court. As it turned out, in its reasons for judgment, the Court did not refer to the notices to produce.

37    In those circumstances, Mr Spencer’s current submission that the High Court “considered that the Commonwealth’s lawyers had conducted its defence in an unreasonable manner” finds no support in the transcript, nor in the Court’s reasons for judgment. What can be said is that, in argument, it was apparent that issues of discovery and production of documents were raised by the Court, and considered to have some relevance to the issues on the special leave application. As the Court recognised in its reasons (see Spencer [2010] HCA 28; 241 CLR 118 at [31] and [48]), discovery or production of documentary evidence supporting the allegations of an informal agreement was always going to be critical to this aspect of Mr Spencer’s case.

38    Overall that leaves the evidence in an unsatisfactory and uncertain state, and no clear picture emerges of where responsibility lies for the manner in which the proceeding was conducted between the remitter to Emmett J and approximately April 2014.

EXERCISE OF THE DISCRETION IN THIS PROCEEDING

39    Each of the respondents has taken very different approaches to the question of costs. Mr Spencer’s submissions also make important distinctions between the two respondents. In exercising the discretion under s 43, I consider it appropriate to examine the exercise of the discretion in respect of the Commonwealth’s costs, and separately in respect of the State’s.

40    However, I first set out my general approach.

41    The matter has been in the docket of four different judges in this Court: Emmett J to the point of the s 31A application and then for some time after the High Court’s decision, Cowdroy J between February 2013 to April 2014, Gleeson J between April 2014 and September 2014 and myself since 4 September 2014. Those circumstances mean it is difficult to assess directly the reasonableness of the conduct of the parties over the whole of the litigation: a large part of the assessment must be based on the available historical documents such as the file, the evidence the parties have chosen to submit, and published interlocutory decisions.

42    Both the Commonwealth and the State only seek costs for the period after the High Court’s decision in September 2010, after which the State was eventually added as a party, and that is the only period I therefore consider.

43    As I have noted at [16] above, there is no real evidence of any activity in this proceeding much before February 2011, when the further amended statement of claim was filed pleading the informal agreement and reflecting the High Court’s reasons for decision. Taking the kind of global view that I consider it is appropriate to take in a case such as this, I consider that any entitlement in the Commonwealth for costs should run from this point, rather than from the High Court’s decision on 1 September 2010.

44    From February 2011 through to the listing of the matter for trial by Gleeson J on 22 May 2014, the proceeding was entirely consumed, it seems to me, by issues concerning discovery and related interlocutory applications. The focus of preparing a particular set of allegations for trial appeared to have been lost. By the time the matter came before Gleeson J, there was an apparent need to restate the understanding of the way Mr Spencer’s case was put, and its evidentiary basis. This was done through the “Profile of Applicant’s Case” document, to which I referred in the principal judgment at [19]. For ease of reference I shall refer to that period in these reasons as the “2011 to 2014 period”.

45    In the somewhat unusual circumstances of this case, in my opinion the 2011 to 2014 period should be considered separately from the period after 22 May 2014 when the matter was fixed for trial. After the latter date, the steps taken in the proceeding are clearly ascertainable, and as the judge who dealt with the trial I am in a position to form views about the conduct of the Commonwealth, in particular, during this time.

46    Finally, as a general factor, I accept Mr Spencer’s submission that the costs orders should reflect the fact that in some of the interlocutory applications, and in relation to the question of “taking” in the final judgment, he had some limited success.

The Commonwealth’s costs

47    Based on my review of the file in the proceeding, the published reasons for judgment on various interlocutory proceedings, the High Court’s observations about the discovery process made on the transcript of argument before the High Court on 16 June 2010, and the uncertainty which I consider surrounds responsibility as between the Commonwealth and Mr Spencer for the length and delay in the interlocutory process, I have reservations about sheeting home to Mr Spencer the Commonwealth’s party/party costs during the 2011 to 2014 period.

48    A very considerable amount of time elapsed after the remitter of this matter before it was listed for trial by Gleeson J, and there is no positive, reliable and comprehensive explanation from any party, in particular from the Commonwealth, for this lapse of time. Mr Spencer put forward his perspective on who was responsible for the proceeding not being ready for trial until mid-2014, but he did so in a way that tended to have the same glosses and exaggeration which characterised many of his submissions in the substantive proceeding, and to which I referred in my principal judgment at [71]. I am not satisfied his evidence is a sufficiently reliable basis for any findings about the allocation of responsibility for the delays, and therefore for the very considerable amount of costs incurred by the respondents during this period.

49    In observing that there is no positive, reliable and comprehensive explanation from any party, I do not overlook the possibility that the parties might have submitted some responsibility for the delay lies with the Court. However, no such submission has been made.

50    In the circumstances, I am not satisfied that it is fair and appropriate to compensate the Commonwealth for its party/party costs during the 2011 to 2014 period. It is not possible, on the evidence before me, to reach a firm conclusion about where the responsibility lies for the way in which those costs were incurred, let alone what the size of those costs might be. In a case like this, it is not appropriate, nor consistent with the overarching purpose in s 37M of the Federal Court Act, to simply abandon these matters to what will inevitably be a drawn-out, contested and complex costs-fixing process, at least without being satisfied on the basis of evidence that is the most appropriate course to be taken.

51    Of course the irony in the current situation is that further legal resources and costs must be employed in order to provide such explanations in costs submissions and in evidence. That is ultimately a matter for the parties. The Commonwealth in particular has elected to provide little if anything by way of positive submissions (as opposed to denials and submissions as to irrelevance) and nothing by way of evidence. The Court is left with a wholly incomplete picture of the course of the proceeding on which to found “the usual order” as to costs. In the very particular circumstances of this case, the Commonwealth’s election (and its implicit rejection of the invitation expressed in the principal judgment to make submissions and advance evidence about potential lump sum orders as to costs) has consequences for the way in which I consider the costs discretion should be exercised, and affects what costs orders I consider are fair and appropriate.

52    Accordingly, the costs for which the Commonwealth should be compensated up to 21 May 2014 should be limited to the following matters.

53    The Court has the costs orders made in specific interlocutory applications by previous judges of this Court who were conducting the proceeding. Those judges were in a position to determine the appropriate costs orders for the matters they dealt with. The Commonwealth should have its costs on a party/party basis as ordered by those judges. The orders as reflected on the Court file are:

(1)    that the costs of the applicant’s motion heard on 15 December 2010 be reserved (orders of Emmett J on 15 December 2010). The Commonwealth should have these costs on a party/party basis, without the reduction which, as set out below, I consider should apply to its costs during a later stage of this proceeding;

(2)    that the costs of the notice of motion filed on 22 September 2010 be costs in the cause, and that the applicant pay the respondents’ costs thrown away by reason of the amendment of the amended statement of claim dated 3 June 2008 made by the further amended statement of claim dated 11 February 2011 and filed 14 February 2011 (orders of Emmett J on 18 February 2011). The Commonwealth should have these costs on a party/party basis, without the reduction I consider should apply to its costs during a later stage of this proceeding;

(3)    that the first respondent’s costs in relation to the question of public interest immunity be the first respondent’s costs in the proceeding (orders of Emmett J on 7 June 2012) The Commonwealth should also have these costs on a party/party basis, without the reduction I consider should apply to its costs during a later stage of this proceeding;

(4)    that the applicant pay the respondents’ costs of 30 August 2012, but that the parties’ costs of the motion of 6 May 2011 otherwise be the parties’ costs in the proceeding (orders of Emmett J on 30 August 2012). The Commonwealth should have both its costs of 30 August 2012 as well as the costs of the motion of 6 May 2011 on a party/party basis, without the reduction I consider should apply to its costs during a later stage of this proceeding;

(5)    that the costs of the applicant’s interlocutory application filed 23 August 2012 be the respondents’ costs in the applicant’s interlocutory application filed 30 November 2012 (orders of Emmett J on 14 December 2012). Since no order in favour of the Commonwealth was actually made on this occasion, I consider the appropriate course is that the Commonwealth should bear its own costs in respect of these applications.

54    There appear to be four other sets of orders made by Cowdroy J where his Honour reserved costs: namely, orders made by consent on 30 May 2013, 3 June 2013, 28 October 2013 and 3 December 2013. The parties should bear their own costs of the steps in the proceeding related to those orders.

55    In addition, I made costs orders on 17 October 2014 reserving the respondents’ costs of Mr Spencer’s interlocutory application for an adjournment of the trial filed on 10 October 2014, and the Commonwealth should have those costs, subject to the reduction I set out below. The Commonwealth’s costs of the adjournment application will form part of the costs for which the Commonwealth should be compensated in accordance with [57]-[60] below.

56    Since September 2014 when the matter has been in my docket I am satisfied the Commonwealth has conducted itself responsibly and has not engaged in any conduct which should result in it not being compensated for the costs it incurred during this period. It also, properly and responsibly, undertook significant additional work and incurred significant additional costs because Mr Spencer was ultimately unrepresented and was unable to fulfil the trial preparation requirements which were necessary in a matter of this size and complexity. Chief amongst those was the preparation, and ongoing updating of, an electronic court book. Mr Spencer benefitted from this in the conduct of his case, and it is available to him in relation to any appeal proceedings. The costs of this should not be borne entirely by the Commonwealth when it would usually have been Mr Spencer’s responsibility as an applicant to prepare this kind of material for the Court.

57    Accordingly, subject to the following findings, the Commonwealth should have its costs on a party/party basis on and from 22 May 2014.

58    My conclusion in [57] is qualified by what I consider to be the public interest considerations in Mr Spencer’s claims. It is true, as the Commonwealth submits, that the relief sought by Mr Spencer included very substantial damages and in this sense his proceeding concerned his private financial interests. However this cause of action was novel, as I found in the principal judgment. The aspects of his claim which were less novel, and which the High Court has recognised as available to him and arguable, were claims for relief in this Court’s constitutional jurisdiction. Mr Spencer consistently articulated these claims as being made on behalf of all farmers affected by the native vegetation clearance regime in New South Wales: indeed, in other States as well. The respondents both accepted the Commonwealth legislation, the intergovernmental agreements and the state legislation had wide-ranging effects, and were intended to. They involved clear policy positions at state and federal level designed to bring about substantial changes to land-clearing practices in what the Governments at the time considered to be the interests of environmental protection. In the evidence before me which I considered in the principal judgment there was a very clear acknowledgment of the broad deleterious effects on many farmers, and farming communities. To say that Mr Spencer took this proceeding not simply on his own behalf but on behalf of other farmers and farming communities is to do no more than recognise a fact which leaps out from the evidence in this case.

59    In those circumstances, I consider that in fixing the amount of costs to which the Commonwealth is entitled, there should be some allowance made for the public interest nature of Mr Spencer’s claims. That allowance should not be wholesale because he also sought personal financial benefit in enormous sums from this litigation.

60    Doing the best I can, and recognising there is no exact science in these conclusions, I consider that it is a fair and appropriate reflection of the public interest component in the proceeding to reduce the costs for which the Commonwealth should be compensated by one half, to allow for this aspect of Mr Spencer’s claims.

The State’s approach to costs

61    I consider the approach taken by the State is a sensible approach in the circumstances of this case. There is ample justification, in accordance with the principles set out in Beach Petroleum NL v Johnson (No 2) [1995] FCA 1250; 57 FCR 119 at 120, and to which I referred in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority (No 2) [2014] FCA 444; 315 ALR 131 at [18]-[22], for an order in the nature of lump sum costs to be made in this proceeding. Indeed, this is the very kind of circumstance which lends itself to such orders, if the parties co-operate in making the required information available to the Court. The State, at least, has co-operated in this way.

62    While there is no particular feature which will mark a case out as one that is appropriate for a lump sum costs order (see Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 at [23]-[24], per Mansfield J), a case such as this which has remained in this Court for eight years, with complicated and resource-intensive subject matter, is an obvious candidate for such orders to be considered. In considering fixing costs by way of a lump sum, the Court would usually examine how proportionate costs of this kind can be said to be to the nature and complexity of the case: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 at [18], and the authorities there referred to.

63    What Ms Namey’s affidavit evidence reveals is the very considerable expenditure of time and resources by the State on this case. It is apparent even from the exhibits tendered in the proceeding that a great deal of tenure information, historical records about land use and decision-making about land use in New South Wales were required to be identified. It is also clear that Mr Spencer’s damages claims required the State to engage a variety of expert witnesses, some of whom ultimately did not need to be called because of the way Mr Spencer chose to confine his damages claims at trial. Having set out in her evidence the categories of costs which the State has incurred, by reference to discovery, expert witnesses, counsel’s fees and the like, Ms Namey puts the total costs of the State at more than $1.8 million.

64    Ms Namey does not depose to whether these costs are calculated on a party/party or solicitor client basis.

65    The amount sought by the State is $10,000. In seeking that amount, the State does not seek to invoke any of the “proportionality” approaches to which the authorities refer, and no doubt the sum sought explains why it was considered unnecessary to have Ms Namey to depose to the basis on which the costs were calculated.

66    The State’s submissions describe the sum of $10,000 as “modest” and “nominal”. Although no doubt in his current circumstances Mr Spencer would not describe $10,000 in that way, and nor would many members of the community, in the context of amounts of legal costs incurred for a proceeding of this length and complexity, to describe what the State seeks as “modest” is certainly accurate.

67    Chief amongst the advantages of lump sum costs is the avoidance of “expense, delay and aggravation” in the more usual costs processes (see Beach Petroleum NL (No 2) [1995] FCA 1250; 57 FCR 119 at 120). That advantage is plainly present in what the State seeks, and I am satisfied to make a lump sum award in that amount also advances the overarching purpose set out in s 37M of the Federal Court Act.

CONCLUSION

68    The factors which have weighed most heavily in the exercise of my discretion are those set out above. However, it is appropriate that I also record the following matters, which I see as contextual rather than determinative. On the evidence (such as it is) before me, the “usual” order as to costs would be likely to expose Mr Spencer to a costs order of over $2 million. Even if only the Commonwealth’s costs were taken into account, on the basis of the evidence about the State’s costs, the Commonwealth’s taxed costs will also likely be over $1 million. An order of that size is crushing, could appear punitive (even where it is not), would tend to entrench the disparity of resources which was at work in this proceeding and could well deter others from bringing proceedings in this Court, in circumstances where legal and factual issues of public and private importance are at stake. Those matters confirm the opinions I have formed about the fairness and appropriateness of a limited order for costs in favour of the Commonwealth, and my preparedness to make the lump sum order sought by the State.

69    There will be an order that Mr Spencer pay the costs of the Commonwealth in this proceeding, only to the extent specified in the orders of the Court. Mr Spencer must pay the costs of the State fixed at $10,000.

Associate:     

Dated:    19 November 2015