Federal Court of Australia

Sofronoff v ACT Integrity Commission (Costs Judgment) [2026] FCA 47

ORDERS

THE COURT ORDERS THAT:

1.    In relation to the issue of parliamentary privilege there be no order as to costs.

2.    In relation to the substantive application, the applicant is to pay the respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 11 December 2025, I dismissed Mr Sofronoff’s application for judicial review: Sofronoff v ACT Integrity Commission [2025] FCA 1565. I provided an opportunity for the parties to file written submissions in respect to the issue of costs, with the matter to be determined on the papers.

2    The principles regarding the award of costs are well established. This Court has a broad discretion in awarding costs: s 43 of the Federal Court of Australia Act 1976 (Cth). The power must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24]. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: Sangare at [24]-[25]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67], [134].

3    In summary, the respondent seeks an order that the applicant pay its costs of the proceedings on the basis that the Commission was wholly successful in relation to the applicant’s application for judicial review of the Juno Report, being the subject matter of the proceedings. On the other hand, the applicant submitted that he succeeded on the issue of parliamentary privilege, which was the subject of a separate hearing, and he established ground 2 of his review. He did not seek a non-party costs order against the Speaker of the ACT Legislative Assembly but rather sought a percentage reduction of the costs otherwise to be awarded to the respondent, an approach recently adopted by Mossop J in Cover v ACT Integrity Commission (No 4) [2025] ACTSC 444. The applicant submitted that on the facts of that case, Mossop J ordered the plaintiff (who succeeded on parliamentary privilege, but whose application was dismissed in circumstances where she failed to establish any of her grounds of review) to pay 85% of the defendant’s costs. He submitted that the present case warrants a substantially greater percentage reduction than the 15% applied in Cover, for two reasons. First, it was submitted that in Cover, the parliamentary privilege issue was addressed on the same day as the substantive hearing, where in the present case, the issue was heard at an earlier separate hearing, and therefore the relative costs burden of the parliamentary privilege issue is greater. Second, in Cover, the plaintiff failed to establish any grounds of review, where here, the applicant succeeded in establishing ground 2. He submitted that although this did not lead to the making of a declaration in the present case, that was only because the respondent agreed to take measures to publicly recognise its error, and therefore the applicant obtained a measure of practical relief. The applicant submitted that the result should be the applicant be ordered to pay a third of the respondent’s costs of the proceedings.

4    I do not accept either parties’ position.

5    There are two factual matters to address in light of the applicant’s submissions.

6    First, although the parliamentary privilege issue was heard at a separate hearing, I do not accept that imposed a relatively greater costs burden. The matter had to be determined, and whether the hearing was immediately before the substantive hearing, or on a separate occasion, did not impact on the length of the hearing or the submissions made. Similarly, I do not agree with the applicant’s submission that because the respondent contended the issue of parliamentary privilege should be addressed separately, the Commission should bear some of the costs of the hearing. I also do not accept the applicant’s submission that in substance, the respondent’s position on privilege mirrored that of the Speaker. The Commission did not advance any submission on the issue of parliamentary privilege, but rather “took no position” on the issue. This is to be contrasted with Cover where the Commission took a position, although it did so by largely adopting the submissions of the Speaker: Cover at [6], [9]. It followed that in this case the applicant was not required to respond to any submission by the respondent on parliamentary privilege. The respondent’s conduct did not generally impact on the length of the hearing. That said, the issue of parliamentary privilege having been raised, it had to be addressed. It is not an issue that can be waived.

7    I note the applicant did not oppose leave being granted to the Speaker to appear as amicus curiae.

8    Second, although the applicant succeeded on ground 2, the respondent conceded that ground in its written submission. It was not a matter of controversy during the hearing. The error was not a material one. The applicant did not establish jurisdictional error, which was the ultimate question in the application. I declined to make a declaration in relation to ground 2. The applicant’s submission that was only because the respondent agreed to take measures to recognise the error, is to misread my reasons.

9    Although the applicant commended the approach of Mossop J in Cover, I do not consider his Honour’s approach there appropriate in this case. Further, the applicant’s submission that it should result in an order for the applicant to pay a third of the respondent’s costs of the proceedings, is unrealistic. It does not reflect the justice of the outcome of the proceedings. Similarly, the respondent’s submission that the whole of its costs be awarded in its favour does not recognise that the applicant succeeded on the separate question.

10    In this case there were two separate hearings and given the circumstances, it is appropriate to address the issue of costs in relation to them separately. I consider this a practical approach. As to the hearing of the issue of parliamentary privilege, the applicant did not seek an order for costs against the Speaker. The issue of parliamentary privilege having been raised, it was required to be determined. For that hearing, no costs order should be made. In relation to the substantive hearing of the application for judicial review, the applicant should pay the respondent’s costs to be agreed or assessed.

Associate:

Dated:    5 February 2026