Federal Court of Australia

McGinn v Australian Information Commissioner (Costs) [2025] FCA 1007

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to rr 1.32 and 1.40 of the Federal Court Rules 2011 (Cth) (FC Rules), the stay of the proceedings ordered pursuant to order 2 of the Orders made by Justice Jackman on 14 August 2025 in NSD544/2025 (Orders) be lifted so as to enable the Court to determine the respondent’s application under r 40.02(b) of the FC Rules for a lump-sum costs order.

2. Pursuant to r 40.02(b) of the FC Rules, the appellant pay to the respondent the respondent’s costs of, and incidental to the interlocutory proceeding, by way of a lump-sum of $4,450.49.

3. The appellant pay the respondent’s costs of the application for lump-sum costs.

4. The matter otherwise continues stayed pursuant to order 2 of the Orders.

5. The interlocutory hearing listed at 10.00am on 4 September 2025 be vacated.

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

REASONS FOR JUDGMENT

NEEDHAM J:

Background

1 On 7 August 2025 I gave reasons for dismissing an application seeking an interlocutory order staying orders made by Jackman J for evidence and hearing of a vexatious proceedings order (see McGinn v Australian Information Commissioner [2025] FCA 962). I made orders on that day dismissing the application. The respondent applied for a lump-sum costs order, and so I directed the parties to file submissions and evidence, and that the application be determined on the papers.

2 The respondent filed submissions on costs, supported by an affidavit, each dated 8 August 2025. The appellant also filed submissions and an affidavit, each dated 11 August 2025.

3 On 11 August 2025, the appellant sought to file further documents, including a “Form 119 Notice of objection to application being considered without oral hearing” (referring to my order that the costs be determined on the papers) and a document purporting to be an application that I recuse myself, on the grounds of actual bias, “the giving of false statements” pursuant to s 137.1 of the Criminal Code Act 1995 (Cth), and my removal from office pursuant to s 72(ii) of the Constitution.

4 I listed the proceedings before me on 4 September 2025 in order to deal with the request for an oral hearing, recusal, and costs.

5 On 14 August 2025 Jackman J made vexatious proceedings orders against Ms McGinn (see McGinn v High Court of Australia (No 5) [2025] FCA 975). Those orders provide:

1. Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Sophia McGinn be prohibited from instituting any proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

2. Pursuant to s 37AO(2)(a) of the FCA Act, the appeals instituted by Sophia McGinn in relation to the decisions made in NSD1070/2024, NSD519/2025, NSD1825/2024, NSD520/2025, NSD1867/2024, NSD463/2025, NSD536/2025, NSD577/2025 be stayed.

6 The application before me was brought in proceedings which were an appeal from the decision of Jackman J in McGinn v Australian Information Commissioner (No 2) [2025] FCA 780 which is numbered NSD1070/2024. Accordingly, pursuant to order 2 of the orders of 14 August 2025, they are now stayed.

7 As a result of the stay, the proposed applications for an oral hearing and recusal cannot proceed. Accordingly I will vacate the hearing listed for 4 September 2025 and regard the objection to the hearing on the papers, and the “application” for my recusal, as stayed.

8 That leaves the issue of the costs of the dismissed application heard on 6 August 2025. The timetabling order in relation to the respondent’s application for lump-sum costs was made prior to the proceedings being stayed, and submissions and evidence were received prior to that date as well.

9 Under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Court has power to make orders of such kinds as it thinks appropriate, and r 1.32 of the Federal Court Rules 2011 (Cth) (FC Rules) provides that the Court may make any order that it considers appropriate in the interests of justice. Rule 1.40 allows me, at any stage of the proceeding, to exercise a power on my own initiative.

10 These discretions are guided by the overarching purpose provision in s 37M of the FCA Act.

11 If the respondent’s application for lump-sum costs is not able to be heard, the respondent would not be able to exercise the more convenient and simpler procedure of a lump-sum costs order. In the circumstances, I consider that it is in the interests of justice to make an order on my own initiative to lift the stay, but only insofar as it enables the respondent’s application for lump-sum costs to be determined.

12 Such an order does not prejudice either party as they have both filed their evidence and submissions in accordance with the timetable prior to the proceedings being stayed. On the contrary, if an order were not made, the respondent would suffer prejudice by not having the application determined due to the vexatious proceedings orders made against Ms McGinn on 14 August 2025.

13 Accordingly I will make an order lifting the stay, if such an order is needed, in order to determine the respondent’s application for fixed costs.

The respondent’s costs application

14 The respondent’s entitlement to costs was established upon the dismissal of the interlocutory application on 7 August 2025.

15 The Court has a broad discretion to award costs under s 43 of the FCA Act. It is widely accepted that the purpose of an order for costs is to compensate the successful party, not to punish the unsuccessful one (see King v Yurisich (No 2) [2007] FCAFC 51 at [19]).

16 In its submissions, the respondent relied on Oshlack v Richmond River Council (1998) 193 CLR 72 at [66] where McHugh J identified the result of the litigation as “by far the most important factor which courts have viewed as guiding the exercise of the costs discretion”. The respondent relied on the principle that costs should follow the event and that exceptions to this rule “focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion” (see Oshlack at [69]).

17 In any case, r 40.04(a) provides that if no order for costs is made on an interlocutory application or hearing, the successful party is entitled to costs.

18 The power to award a party costs in a specified sum is provided by s 43(3)(d) of the FCA Act and r 40.02(b) of the FC Rules.

19 The power to make an order for lump-sum costs may be exercised whenever the circumstances warrant it and there is no particular characteristic of a case that must first exist (see Black & Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737 at [3] (Heerey J) citing Harrison v Schipp (2002) 54 NSWLR 738 at [21] (Giles JA)).

20 A lump-sum costs order may be suitable for a large and complex commercial matter to save the time, trouble, expense and aggravation of a taxation (see Paciocco v Australia and New Zealand Banking Group Limited (No 2) (2017) 253 FCR 403 at [20]). However, it has also been observed that the Court should fix a lump-sum where the matter is more conveniently dealt with by reason of its relative simplicity (see Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51] (Emmett J)). The present case falls into the latter category.

21 The principles which guide the discretion to order costs as a lump-sum order were set out by Perry J in Commonwealth v Harrison (No 2) (2020) 381 ALR 328 at [110], citing her Honour’s judgment in Soden v Croker (No 3) [2016] FCA 249. In summary, these principles are:

(a) The discretion must be exercised judicially and only after giving the parties an adequate opportunity to make submissions on the matter (see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120 (von Doussa J); Julien v Secretary, Dept of Employment and Workplace Relations (No 2) [2009] FCA 1259 at [9] (Spender J)).

(b) The discretion may be exercised where the Court is of the view it will avoid the expense, delay and protraction of litigation arising out of a taxation, whether the case be a complex or simple one (see Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371 at [22] (Finn J); Beach Petroleum at 120).

(c) The Court must be satisfied that the lump sum estimate is “logical, fair and reasonable” (see Ginos at [23]; Beach Petroleum at 123).

22 In practice, the approach to lump-sum costs orders and the relevant procedure is contained in the Court’s Costs Practice Note (GPN-COSTS) issued on 25 October 2016 (the Practice Note).

23 Pursuant to paragraph 4.10 of the Practice Note, no formal application for a lump-sum costs order is required. However, in cases where a lump-sum costs procedure is to take place, the Costs Applicant should file an affidavit in support (Costs Summary) which should succinctly address the relevant matters set out in Part B, and verify the matters set out in Part A of Annexure A to the Practice Note.

24 In this case, the Costs Applicant is the respondent who seeks the costs of, and incidental to, the interlocutory proceeding fixed in the sum of $4,450.49. This differs from the amount sought orally on 7 August 2025 as the respondent had inadvertently previously claimed counsel’s fees on a GST inclusive basis. The Costs Summary is provided by way of an affidavit of Nathan Cameron dated 8 August 2025.

25 The respondent has complied with the requirements in Part B of Annexure A to the Practice Note by setting out, to the extent it is relevant, the information in the Costs Summary:

(a) Whether the Costs Summary has been prepared with the assistance of an expert as to costs;

(b) Who is liable to pay the costs claimed and on what basis;

(c) Any relevant costs orders or rules relied on in support of the costs claim;

(d) The amount of the lump-sum sought;

(e) How the lump-sum has been calculated (including any GST portion) and if any discounts have been applied;

(f) A summary of the categories of the work fairly and reasonably incurred in the conduct of the litigation, including an estimate (in percentage terms) of the proportion that each category of work constitutes of the total costs claimed;

(g) In respect of each person who has performed costs work the subject of the claim:

(i) summary of each person’s hourly rate and total hours worked; and

(ii) an estimate (in percentage terms) of the proportion of the total sum claimed attributable to that person;

(h) A summary of disbursements fairly and reasonably incurred, including fees charged by counsel and any expert witnesses. In respect of counsel, an estimate (in percentage terms) of the proportion of the total sum claimed attributable to counsel fees; and

(i) Whether the amounts fall within or outside the amounts permissible for any item under the scale of costs in Schedule 3 of the FC Rules.

26 The respondent has complied with Part A of Annexure A to the Practice Note in paragraphs 1 to 4 of the affidavit of Mr Cameron, by verifying the following:

(a) The deponent has read the Practice Note;

(b) The entitlement to claim input tax credits in respect of any GST relevant to the claims in the Costs Summary;

(c) The respondent is not claiming more than they are liable to pay for costs and disbursements, the calculations are correct, and the matters noted are a fair and accurate summary of the costs and disbursements that the respondent is entitled to claim; and

(d) The amounts claimed are capable of further verification through source material should such material be required by the Court to be produced.

27 In my view, the respondent has complied with the relevant practice and procedure set out in the Practice Note.

28 The appellant gave affidavit evidence responding to the Costs Summary, claiming that it was fraudulent and should be dismissed. The reason given was that the respondent did not provide any relevant costs order or rules relied on in support of the Costs Summary. This requirement is contained in paragraph 1(c) of Part B of Annexure A to the Practice Note that the Costs Summary should set out “any relevant costs orders or rules relied on in support of the costs claim”.

29 There is no basis to the appellant’s claim of fraud. At paragraph 7 of Mr Cameron’s affidavit, he deposes that the solicitors for the respondent calculated the costs allowable for work done and services performed with regard to r 40.02(b) of, and Schedule 3 to, the FC Rules. Again at paragraph 9, Mr Cameron deposes that the amounts referred to in paragraph 8 fall within the amounts permissible for any item under the scale of costs in Schedule 3 of the FC Rules.

30 This also appears to resolve paragraph 1 of the appellant’s submissions that “the Respondent failed to provide evidence required by GPN-Costs”, with a footnote referencing the appellant’s affidavit. The appellant did not provide a further description of the respondent’s failure to provide evidence.

31 The remainder of the appellant’s submissions raise a number of grounds of contest, relying on various rules which she says would mean the respondent is not entitled to costs at all. The grounds she raises are misconceived. For example, at paragraph 4 of her submissions the appellant argues that the respondent is required to enter a relevant order before filing the submissions per r 39.31(1)(b). The appellant has misconstrued the operation of the rule, which requires entry prior to an order being enforced. Entry of the orders made on 7 August 2025 is not a precondition to the respondent filing submissions, or the appellant for that matter.

32 I am also unable to accept the appellant’s submission that the Hardiman principle (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35–36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ)) arises in these proceedings. The respondent is a party to the proceedings and to the interlocutory order which was sought by the appellant. Counsel for the respondent appeared at the interlocutory hearing on 6 August 2025 and provided considerable assistance to the Court on that basis. The appearance of the respondent was, in my view, reasonably necessary, and would entitle the respondent to an order for costs.

33 I am satisfied that the respondent should have his costs by way of a lump-sum costs order as sought. The appellant should pay the costs of the application for lump-sum costs. Apart from making these orders, the stay ordered by Jackman J remains in force.

Associate:

Dated:    26 August 2025