Federal Court of Australia

Plaintiff S111A/2018 v Minister for Home Affairs (No 5) [2022] FCA 603

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 2 below:

(a)    the respondents pay the applicant’s costs of and incidental to the commencement of the proceeding in the High Court on 17 April 2018, and pay the applicant’s costs of the proceeding up until 16 May 2019, to be fixed by way of a lump sum; and

(b)    the respondents pay the applicant’s costs of the proceeding, from 29 October 2020, to be fixed by way of a lump sum.

2.    The respondents must pay only 70% of the applicant’s lump sum costs referred to in order 1(b), but must pay all of the applicant’s lump sum costs referred to in order 1(a).

3.    If the parties cannot agree on appropriate lump sums payable under order 1, then the question of appropriate lump sum costs be referred to a Registrar of the Court for determination.

4.    Any existing costs orders, and orders reserving costs, be vacated.

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

REASONS FOR JUDGMENT

MORTIMER J:

Background

1    Judgment in this proceeding was handed down on 5 April 2022: see Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329 (the primary reasons). In the primary reasons, I invited the parties to confer and provide the Court with agreed short minutes of order setting out the orders, any declaratory relief, and any orders as to costs that should be granted so as to reflect the Court’s findings in that judgment. If the parties could not agree on proposed minutes of order, they were directed to file the orders for which they each contend, and submissions in support of those proposed orders. No agreed minutes were filed.

2    However, the parties did agree on the proposed content of substantive orders arising out of the primary reasons. The Court made substantive orders in this proceeding on 22 April 2022, largely reflecting the parties’ proposal. The substantive orders set aside the 2018 and 2020 adverse security assessments (2018 ASA and 2020 ASA), and the protection visa decision in respect of the applicant. The parties could not agree on appropriate costs orders for the proceeding. Neither party sought an oral hearing on the question of costs.

3    For the reasons set out below, the applicant should have a costs order in his favour operating after 29 October 2020, and after that date he should recover 70% of his costs. He should also have a costs order for the initial part of the proceeding. For what might be called the interlocutory stage of the proceeding, between 16 May 2019 and 29 October 2020, I consider it is just and appropriate that the parties bear their own costs. The costs payable by the respondents should be fixed by way of a lump sum, to be determined by a Registrar in default of any agreement between the parties. These orders should supersede any existing costs orders, and any orders reserving costs.

Parties’ submissions

4    The applicant seeks an order that the respondents pay his costs, describing what was sought as a “full” costs order. By that expression, I infer the applicant presses for an order that the respondents pay his costs of the entire proceeding, to be taxed in default of agreement.

5    The respondents seek an order that:

The respondents pay 20% of the applicant’s costs incurred after 12 March 2021, as agreed or assessed, including in lieu of earlier costs orders made in the proceedings to date.

Applicant’s submissions

6    The applicant concedes his case failed on a number of points, but contends that since he was ultimately successful in the proceeding, it is justifiable that the respondents should compensate him for the costs of the proceeding as a whole. In particular, the applicant challenged the lawfulness of the 2018 ASA and 2020 ASA, and secured final relief setting aside those ASAs.

7    Relying on what was described as an “imbalance” of resources between the parties throughout the proceedings, the applicant contends this feature is of particular relevance to a decision on costs, given the complexity of the proceedings. The legal representatives for the applicant concede they have at times been unable to meet Court deadlines, but also point to extensions or late filings by the respondents. The applicant contends:

At various times of these proceedings the matter was without Counsel, no funding for printing and in circumstances where Senior Counsel prefers to work with hard copies, the enormity of the files and document size causing computer issues made navigation more onerous. Although it is the usual course for the Respondents to prepare and cover the costs of the printing of the Court Books, in this case the Respondents diverted from the usual course and refused to cover the cost of printing a hard copy for the Applicant’s lawyers.

8    The applicant submits that the respondents caused unreasonable delay in the proceedings, including:

(a)    by the first and second respondents unreasonably refusing the applicant the ability to use his own laptop and the privacy of a single-use room to access more than 23,000 discovery documents, and that:

The many months of delay for the Applicant to access the 23,677 plus discovery documents delayed meaningful instructions for amendments to the Statement of Claim as to the unlawfulness of the 2018 ASA. It was not until 10 March 2020, that a hard copy was given to the Applicant in Villawood Detention Centre but they declined to provide a hard copy of this material to the Applicant’s legal team. The Applicant was unable to privately access the hard copy of 42 arch folders.

(b)    by the Australian Security Intelligence Organisation (ASIO) unreasonably withholding disclosure of the briefing note for the 2020 ASA and the security assessment determination number 3 (SAD3).

9    The applicant also relies on a particular finding made by the Court about the 2020 ASA: see primary reasons at [232]-[233], which relevantly state:

In 2020, the Director-General of ASIO was Mike Burgess. It was to him that the 2020 briefing note was addressed. This briefing note was headed:

Precedence: Priority. ASIO is required to furnish this updated ASA by 29 October 2020 as directed by the Federal Court.

As far as the Court’s records and transcripts show, this Court did not ‘direct’ a new ASA be conducted. To the contrary, at a case management hearing, senior counsel for the respondents submitted the 2020 ASA was part of a “standard” process. The extracts from the 2020 ASIO interview that I have set out earlier in these reasons confirm that this was a process of ASIO’s own motion.

10    The applicant submits that ASIO’s decision to issue the 2020 ASA increased the scope of the proceeding after it had been commenced, and this unilateral conduct by the respondents during the currency of the proceeding should be taken into account on the question of costs.

11    The applicant contends that in light of his ultimate success, the costs order against him made on 17 June 2021 relating to the respondents’ costs of addressing the allegations made in amended portions of the third further amended statement of claim should be vacated.

Respondents’ submissions

12    The costs order sought by the respondents relies on two separate points:

(a)    first, that costs should only be awarded in relation to the period from 12 March 2021; and

(b)    second, that the respondents should pay only 20% of the applicant’s costs for that period.

13    In support of the first point, the respondents submit that the primary reasons (and the substantive orders agreed by the parties) focused on the 2018 ASA and 2020 ASA, yet the applicant did not seek orders quashing the 2018 ASA and 2020 ASA until the filing of the further amended statement of claim on 12 March 2021. As a result, any costs order in favour of the applicant should be limited to costs incurred after 12 March 2021.

14    On this point, the respondents also submit that:

The extensive legal and procedural issues raised (and often abandoned) by the applicant prior to that time, including the attempt to run the proceeding in the High Court of Australia, have been ultimately irrelevant to the relief sought and obtained.

15    The respondents maintain each party should bear its own costs prior to this date, and also that the two existing costs orders in their favour (made on 10 June 2020 and 17 June 2021) be “subsumed” in any costs orders made by the Court.

16    In relation to the second point, the respondents submit that an order for the respondents to pay 20% of the applicant’s costs after 12 March 2021 is a “generous” estimate. In support of this submission, the respondents contend the applicant did not succeed on the majority of the points pressed on his behalf at the final hearing in the proceeding. In particular, the respondents point to the failure of the following allegations made on behalf of the applicant:

(a)    the allegation that ASIO officers acted outside their authority (primary reasons at [264]);

(b)    the allegation that non-compliance with security assessment determination number 2 (SAD2) and SAD3 of itself leads to legal error (primary reasons at [291]);

(c)    the allegation that ASIO unreasonably withheld documents from the applicant and his legal representatives (primary reasons at [314]);

(d)    the allegation about ASIO’s reliance, in respect of the 2020 ASA, on the Interpol Red Notice and the court records from the Returnees from Albania trial (primary reasons at [320]);

(e)    the allegation that ASIO failed to consider materials provided on behalf of the applicant (primary reasons at [361]);

(f)    the allegation that ASIO failed to consider the consequences of any removal of the applicant to Egypt (primary reasons at [365]);

(g)    the alleged lack of confidentiality of the 2020 security assessment interview (primary reasons at [389]);

(h)    the allegations of inaccurate interpreting during the 2020 security assessment interview (primary reasons at [392]);

(i)    the allegations of use of certain unreliable sources and information (primary reasons at [405]); and

(j)    the allegation of a failure to accurately record and therefore consider the applicant’s answers during interviews (primary reasons at [408]).

17    The applicant’s written submissions accept that the applicant was not successful on the points listed in [16] with the apparent exception of point (g) in the list above, relating to the Court’s finding in the primary reasons at [389], which is not explicitly referred to in the applicant’s submissions.

18    The respondents also rely on the Court’s findings in the primary reasons at [11] and [30] concerning a lack of focus and precision on the part of the applicant’s legal representatives, and the failure to discharge the applicant’s burden of proof with respect to some pleaded allegations.

19    These features led, the respondents submit, to a situation where evidence in the proceeding was almost entirely directed to issues that were ultimately not pressed by the applicant, or on which the applicant did not ultimately succeed. As a result, the respondents submit, the respondent parties have been put to significant and unnecessary costs arising from the manner in which the applicant and his representatives have litigated the matter.

My conclusions

20    The principles applicable to the exercise of the Court’s broad costs discretion are well established: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (costs) [2021] FCAFC 75 at [14]-[16]; Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14]; Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 123; 235 FCR 366 at [4]. I set out the relevant principles, with particular reference to the context of an applicant seeking to secure their liberty, in Bowman v Commonwealth of Australia [2022] FCA 594 at [60], citing Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 at [22]; MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 at [3]-[5]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [19]; see also DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [22]-[23].

21    The applicant has succeeded in securing substantive relief in respect of both the 2018 ASA and 2020 ASA, and in respect of the protection visa decision adverse to him. Given the current state of the law as set out in Commonwealth v AJL20 [2021] HCA 21; 95 ALJR 567 (AJL20 (HCA)), that is likely the maximum relief that he could have expected to secure. In that sense, he has been substantially if not wholly successful in terms of the outcome of the proceeding. In a straightforward situation, on usual principles costs would follow that event and he would receive compensation for his legal costs of the proceeding as a whole.

22    However, the course of this proceeding has been far from straightforward: see the primary reasons at [10] and the earlier reasons there referred to. In the 11 March 2021 decision permitting amendments to the applicant’s pleadings (Plaintiff S111A/2018 v Minister of Home Affairs (No 3) [2021] FCA 207), I said at [18] and [25]:

The interlocutory debates between the parties need to cease. While it is important that parties be able to advance their cases, and are aware of the case they have to meet, in this proceeding both sides have had plenty of time to acquaint themselves with these matters. The incessant inter-party squabbles, the pages and pages of correspondence, and the nice legal arguments, have not advanced the circumstances of the applicant one jot. He remains detained without his allegations of false imprisonment having been determined. It is his liberty at stake, and on both sides there appears to have been insufficient regard paid to this fact. Whether or not his case succeeds, he is entitled to have it tried, and tried with relative efficiency, and at a cost which is proportionate to the length and complexity of the ultimate trial. It is clear the respondents are unlikely to recoup any legal costs from the applicant and the time has come to cease running up costs on interlocutory and preliminary matters.

….

I consider the point has been reached in this proceeding where the need to get the matter on for trial, and to facilitate compliance with existing orders of the Court, overwhelms other considerations. In a perfect world with two fully funded parties and numerically strong legal teams at their disposal, a trial may well much more closely resemble the adversarial, gladiatorial style of the past. Encouraging that kind of process is inappropriate to the circumstances of a proceeding such as this. To the extent the proceeding has been conducted in this way to this point, the history of the proceeding is the best evidence of its failure. The applicant remains deprived of his liberty more than three years after he commenced this proceeding alleging his detention is unlawful, and there has still not been a trial, but no doubt the respondents’ legal costs are already very high. All for what the parties jointly say to the Court is a three day trial. That is not an effective and efficient use of anybody’s resources, and especially not public resources, on the side of the respondents and the Court.

23    This proceeding has been hard fought, and I accept the applicant’s submissions that there has always been a real disparity of resources as between the applicant and the respondents: see my findings to this effect set out above, and also at Plaintiff S111A/2018 (No 3) at [21]. I accept that the disparity in resources was responsible for at least some of the delays in compliance with the Court’s timetabling orders, although as I have said in previous judgments in this proceeding, that was not a complete explanation. Taking that disparity of resources into account, I am not prepared to characterise the conduct of the applicant’s case as sufficiently unreasonable that he should be denied compensation for most of his costs, which is the effect of the respondents’ proposal. This has always been a complex and difficult case, and the reformulation of it as factual circumstances changed, particularly after the 2020 ASIO assessment and after discovery, was to be expected.

24    The disparity in resources, and retaining counsel prepared to appear for the applicant under constrained circumstances, may have contributed to at least some of the lack of focus in the proceeding, and to the fact that the case for the applicant was not really settled until leave was sought in early 2021 to rely on the second further amended statement of claim, an application which was granted in substance: Plaintiff S111A/2018 (No 3).

25    While I agree with the respondents that the applicant should not be compensated for his costs for the whole of the proceeding, and that an appropriate way to achieve that outcome is to fix a date after which the applicant should be compensated, in my opinion a fair and just costs outcome in this proceeding requires somewhat more nuance than fastening on one date to give effect to that overall view, as I explain below.

26    As a matter of general principle, it is relevant to the exercise of the Court’s cost discretion that the proceeding concerned the applicant’s liberty. He and his family were detained for a long period of time before being allowed to apply for a protection visa. The applicant’s detention continued for a long period of time while the protection visa application was processed; more than three years. He then continued to be detained because the protection visa was refused – not because of non-satisfaction as to Australia owing him protection obligations, but because of an adverse ASIO assessment (the 2018 ASA). This assessment also meant he was not released into community detention, with his family. Where a proceeding concerns a person’s liberty, the Court must be careful not to make costs orders which may have a chilling effect on other persons seeking to advance arguments designed to secure their liberty: see Bowman v Commonwealth of Australia [2022] FCA 594 at [60], citing Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 at [22]; MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 at [3]-[5]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [19]; see also DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [23(a)]-[23(b)]. An outcome of that kind is not in the interests of the administration of justice.

27    Further, as a matter of general principle, where an applicant commences or continues a proceeding on the basis of the law as it then is, and during the course of the proceeding, the law changes, amendments made to reflect the changed law are not matters outside the compensation to which a party having the benefit of the usual order as to costs should be entitled. Amendments of pleadings to reflect changes in the law are responsible conduct by a party, not unreasonable conduct. That is what happened here with the decisions in the AJL20 proceedings first by this Court and then by the High Court: see AJL20 v Commonwealth [2020] FCA 1305; 279 FCR 549; AJL20 (HCA). The same is true of changes to pleadings to reflect changes in the factual circumstances underpinning causes of action. That is what happened in the present proceeding, as the sequential decision-making by or on behalf of the executive about the applicant and his family took shape, and changed shape. In a factually fluid situation of some complexity, amendments of pleadings to reflect changes in the law are responsible conduct by a party, not unreasonable conduct. The applicant was not in control of the timing of any of that executive decision-making.

Should the applicant recover his costs only from a certain date?

28    I do not accept the respondents’ submissions that the applicant should only recover his costs after 12 March 2021, being the day after the Court’s orders permitting the applicant to file and rely upon the second further amended statement of claim. I consider that date is too late in the proceeding, and would not represent a fair and just costs outcome.

29    There are two principal reasons for my conclusion.

30    First, since the matter as remitted was before this Court in the first half of 2019, the applicant has maintained a challenge to the 2018 ASA and to the refusal of his protection visa: see Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271 (Plaintiff S111A/2018 (August 2019)) at [9], Robertson J:

So far as concerns the first applicant, there is an issue on the pleadings as to the validity of the Minister’s refusal of his protection visa application made on 13 June 2018, which emerges from the ASOC at [104]-[105] and the corresponding paragraphs of the defence. There is also an issue as to the validity of the April 2018 ASIO (current) adverse security assessment.

31    The proceedings in the High Court were commenced prior to the issuing of the 2018 ASA but, amongst other things, sought mandamus to compel the completion of the ASA. Relief was also sought in respect of the Interpol Red Notice, the delay in a decision about whether the applicant (and his family) should be permitted to apply for a protection visa, and the fact that the delay meant they were ineligible to apply for a permanent protection visa. In the primary reasons, I traced the considerable delays of the executive in making a decision to ‘lift the bar’ under s 46A(2) of the Migration Act 1958 (Cth): see the primary reasons at [69]-[78]. As commenced, the proceeding concerned the factual situation the applicant and his family then found themselves in. The 2018 ASA was issued only a few days after the applicant commenced the High Court proceedings: that is, on 23 April 2018. The protection visa application was finalised and refused on 13 June 2018, only a couple of months after the applicant had issued the High Court proceedings.

32    While the details of the applicant’s grounds have certainly changed over time, and have often been somewhat unclear, I consider that the kind of relief he has always sought – related to his immigration detention, and the process of decision-making by the Australian executive in relation to his claims for protection – has not changed in broad substance, other than to reflect factual developments and changes in the law. I am satisfied he had to commence this proceeding in order to obtain the relief he sought, and indeed it would appear that the commencement of the proceeding had some effect on the timing of executive decision-making. He should be compensated for the legal costs involved in commencing the proceeding and seeking relief about his claims for protection, his lengthy immigration detention and the adverse security assessments. He should be compensated for the costs of the proceeding in the High Court and on remitter, up until the parties agreed on orders effecting a transfer of part of the proceeding from the (then) Federal Circuit Court to this Court. That is, up until 16 May 2019: see Plaintiff S111A/2018 (August 2019) at [2].

33    The second reason concerns the 2020 ASA, which I deal with from [36] below.

Why should the applicant not be compensated for the period 17 May 2019 to 29 October 2020?

34    In my opinion it would not be appropriate for the applicant to be compensated for his costs incurred in this Court from 17 May 2019 until 28 October 2020, being a period when the parties were embroiled in a number of interlocutory disputes about pleadings and about discovery. A lengthy discovery request, and numerous objections by the respondents, resulted in the reasons given by Robertson J on 13 August 2019 about discovery: Plaintiff S111A/2018 (August 2019). In that decision, his Honour declined to order discovery in most of the categories sought by the applicant, and reserved the costs of the application. The reason for many of the refusals in specific categories was that the category sought was “insufficiently directed to the issues arising from the pleadings and is too broad”: see, eg, [19] of his Honour’s decision. At this point the applicant’s family were still parties to the proceeding, and relief was being sought about their continued detention.

35    These discovery disputes continued, as did the arguments over pleadings and particulars, which led to the comments in my decision which I have extracted above. It is not possible readily to determine whether any party was acting unreasonably, or reasonably, delaying or not delaying, during this period of time. The costs in asking the parties to present arguments about that, and the time and resources in the Court determining such a question, would not be proportionate to the issue. This proceeding has already been lengthy and expensive, all the while the applicant has been detained. While somewhat ‘broad brush’, in my opinion the justice of the case overall would be best reflected in the parties bearing their own costs of this period of the proceeding.

36    From 29 October 2020, I consider the situation changes. That is the date upon which ASIO issued the 2020 ASA. The applicant had been interviewed before this, in September 2020: see primary reasons at [121].

37    In the primary reasons, the Court made an express finding that it was erroneous for the briefing notes to the Director-General of ASIO to describe what occurred in respect of the 2020 ASA as being undertaken because of a direction by the Court. I found it was undertaken of ASIO’s own motion. This was a conscious decision by ASIO, during the currency of a proceeding challenging, amongst other things, ASIO’s decision-making on its previous security assessment. It occurred after Independent Reviewer of Adverse Security Assessments, Robert Cornall, had made some substantive critical observations about the 2018 ASA. The timing was of ASIO’s choosing. I infer that decision must have been made with legal advice, given ASIO is a respondent to this proceeding; see also my findings in the primary reasons at [174]. Therefore, I infer ASIO must have understood, or is likely to have been advised, that a new adverse ASA would mean that any successful challenge to the 2018 ASA could not affect the protection visa refusal, and in that sense it would be likely the applicant would challenge any new ASA in this proceeding. In other words, I find ASIO must have understood that the making of a fresh security assessment, if adverse, would be the subject of challenge in this proceeding. It nevertheless conducted the security assessment. It, and the other respondents, then did not consent to amendments to the applicant’s pleadings to incorporate a challenge to the 2020 ASA. On the respondents’ written submissions for the interlocutory application to amend, this was because of inadequacies in the pleadings, or in particulars provided by correspondence. However, so far as I have been able to ascertain, there was no general concession by the respondents to the challenge to the 2020 ASA. Unsurprisingly, given it represented a roadblock to the applicant being granted a visa even if the challenge to the 2018 ASA succeeded, the pleading about the 2020 ASA was the largest amendment to the proposed second further amended statement of claim: see my reasons in Plaintiff S111A/2018 (No 3) at [9(d)].

38    I accept the applicant’s submissions that the decision to undertake a further security assessment during the currency of the proceeding added considerably to the costs of the proceeding, and changed the course of the proceeding. To do so was a choice by ASIO. That choice meant that the applicant had to go through what the evidence demonstrated was a considerable process to obtain documents relating to the September 2020 interview, and documents relating to the 2020 assessment. His legal representatives had to reformulate the case for the applicant. The applicant succeeded on his challenge to the 2020 ASA. It is fair and just that he be compensated for his costs from the date of the making of the 2020 ASA, namely 29 October 2020.

39    The applicant should be compensated for his costs of the proceeding from this point to the conclusion of the proceeding.

Should the applicant be compensated for all his costs from 29 October 2020?

40    Again, the respondents’ submissions about whether it is appropriate to compensate the applicant for all of his legal costs have some force. There are multiple examples, in the time this proceeding has been in my docket, of non-compliance with orders, of a lack of clarity in the applicant’s case and even lack of clarity about forensic choices to be made about his case, as well as matters such as a lack of discipline about which documents the applicant intended to rely upon: see, eg, the primary reasons at [13]. There were also last minute amendments and changes to his case, the clearest example of which was the proposed amendment to the pleadings at the very commencement of the final hearing: see the primary reasons at [24].

41    Finally, the respondents assumed, at the Court’s request, some considerable tasks related to the trial, which ought not have been their responsibility in a proceeding where parties had more equal resources, and where there had been more thorough preparation of aspects of a party’s case. At the Court’s request, the respondents undertook the preparation of the court books, and the authorities for trial. That included amendments to the court books as the documents on which the parties sought to rely was refined. Most of that revision was necessary because the applicant had not adequately refined the documents relied on. The respondents’ closing submissions also addressed in detail, and by evidence references, a number of aspects of the applicant’s case which were left undeveloped by the applicant’s legal representatives, yet were not withdrawn. All of these aspects of the applicant’s case failed.

42    I also take into account the fact that the applicant did not succeed on a number of allegations he made, the list of those matters being set out at [9] of the respondents’ written submissions on costs. Generally, the authorities encourage caution against apportioning the costs of a successful party by some kind of division into the issues on which the party succeeded and those the party did not: see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 AJLR 270 at [6]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271, citing Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; 237 FCR 127, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 (Bray CJ); Axent Holdings Pty Ltd t/a Axent Global v Compusign Australia Pty Ltd [2020] FCA 1835 at [24]; Herold v Seally (No 3) [2017] FCA 95 at [7], citing Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38].

43    Conscious of those authorities, I consider the circumstances in this proceeding are not straightforward and somewhat exceptional. The rationale for reducing the costs compensation to the applicant after 29 October 2020 goes beyond some kind of arithmetical calculation of the matters on which he succeeded and those he did not. It takes into account the lack of development on behalf of the applicant of many of the issues pressed, and the corresponding burden placed on the respondents to assist the Court to understand the evidence and legal propositions relevant to those allegations. It also takes into account the considerable relief provided by the respondents to the applicant in respect of matters which would usually be his responsibility as the moving party, such as court book preparation. Those factors, considered cumulatively, make it just and appropriate for the applicant not to be compensated for all of his costs after 29 October 2020.

44    The respondents’ submission of compensation only as to 20% is far too low and does not adequately reflect that the applicant succeeded on what might be described as the main planks of his case, matters which had been the main planks of his case since the various causes of action arose, given the changing factual circumstances. There can be no reasonable basis to reduce the applicant’s costs because of the High Court decision in AJL20 (HCA); he was entitled to maintain a cause of action based on a decision of a single Judge of this Court, and he properly withdrew it after the High Court decision.

45    I consider a fair and appropriate reduction would be 30%. Therefore, the respondents should pay 70% of the applicant’s costs incurred on and after 29 October 2020 to the finalisation of the proceeding. That is in addition to the order I consider appropriate about the applicant’s costs of commencing the proceeding, up until its transfer in its entirety to this Court.

Lump sum costs order

46    Based on the course of the proceeding to date, it might reasonably be anticipated there will be disputes about any calculation of costs. The parties’ resources, and the Court’s resources, should not be unduly occupied on this matter. After all, this was a four-day trial overall, not a four week one. The Court’s policy, as evinced in its practice notes, is for costs to be fixed by way of a lump sum: see Costs Practice Note (GPN-COSTS) issued 25 October 2016, at [4.1]. That should occur in this proceeding and there will be directions accordingly, including provision for a Registrar to make a decision on an appropriate lump sum if the parties cannot agree. It is appropriate that there be two separate lump sums, one for the first chronological period of costs (see order 1(a)) and one for the second (see order 1(b)).

Associate:

Dated:    23 May 2022