Federal Court of Australia

Patrick v Secretary, Department of Climate Change, Energy, the Environment and Water (No 2) [2026] FCA 642

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 of the orders made on 10 July 2025 be vacated.

2.    Pursuant to r 40.51 of the Federal Court Rules 2011 (Cth), the maximum costs that may be recovered in this proceeding:

(a)    as between the applicant and the first and second respondents, collectively, is $45,000; and

(b)    as between the applicant and the third respondent is $45,000.

3.    Costs of the interlocutory applications filed on 23 December 2025, respectively, by the applicant and by the first and second respondents be costs in the proceeding.

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

REASONS FOR JUDGMENT

STELLIOS J:

Introduction

1    On 10 July 2025, I made orders pursuant to r 40.51 of the Federal Court Rules 2011 (Cth) setting the maximum costs that may be recovered in this proceeding:

(1)    as between the applicant, Mr Patrick, and the first and second respondents (the Commonwealth parties), collectively, the maximum costs were set at $20,000; and

(2)    as between the applicant and Snowy Hydro Limited, the maximum costs were set at $20,000.

2    Those earlier orders and accompanying reasons (the earlier reasons) were published as Patrick v Secretary, Department of Climate Change, Energy, the Environment and Water [2025] FCA 754 (Patrick (No 1)).

3    These reasons deal with subsequent applications by Mr Patrick and the Commonwealth parties, respectively, to vary those earlier orders. Familiarity with the earlier reasons is assumed.

4    In short, I accept that the circumstances have sufficiently changed to warrant a variation of the earlier orders to increase the maximum costs recoverable in this proceeding.

Applications and evidence

5    There are competing applications to vary the earlier orders. Mr Patrick seeks differing orders as between the parties:

(1)    The maximum costs that may be recovered from Mr Patrick by, respectively, (a) the Commonwealth parties (collectively) and (b) Snowy, be set at $20,000 each.

(2)    There be no maximum costs order in respect of the costs that may be recovered by Mr Patrick from the Commonwealth parties and Snowy (together, the respondents).

6    In short, Mr Patrick seeks an order that operates unilaterally solely for his benefit.

7    The Commonwealth parties seek to replace the earlier orders with an order that the maximum costs that may be recovered by each of the parties be as follows:

(1)    as between Mr Patrick, and the Commonwealth parties (collectively), $150,000; and

(2)    as between Mr Patrick and Snowy, $150,000.

8    The following affidavits were read in support of Mr Patrick’s application:

(1)    An affidavit affirmed on 23 December 2025 by Mr Patrick;

(2)    An affidavit affirmed on 23 December 2025 by Mr Stephen Blanks;

(3)    An affidavit affirmed on 23 January 2026 by Mr Patrick; and

(4)    An affidavit affirmed on 23 January 2026 by Mr Blanks.

9    The Commonwealth parties’ application was supported by the affidavit of Ms Elena Arduca affirmed on 23 December 2025. In support of that application, Snowy read the affidavit of Mr Malcolm Stephens sworn on 24 December 2025 (with the exception of an error as to the estimate of the duration of the appeal hearing, which was not read).

Principles for varying interlocutory orders

10    The principles governing the exercise of discretion to vary an interlocutory order were summarised by Moore J in Waterproofing Technologies Pty Limited v Perri (No 3) [2025] FCA 934 at [18]–[23] in terms with which I respectfully agree:

There is an obvious undesirability in facilitating successive interlocutory applications for the same relief. There is a policy in favour of the finality of litigation, which may bear upon the variation or discharge of certain types of interlocutory orders: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (Brimaud) at 46 per McLelland J; Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 (Pivotel Satellite) at [26] per Jagot J.

Rule 39.05(c) of the Federal Court Rules 2011 (Cth) provides that the Court may vary or set aside an interlocutory order. The variety of circumstances in which such an application may be brought, and the variety of interlocutory orders, is necessarily wide.

Nevertheless, in the case of an interlocutory order made after a contested hearing and intended to apply until final hearing (or a consent order to the same effect which is subsequently contested, but with the challenge rejected), or a consent order fixing the substantive position of the parties until trial, it is ordinarily necessary to demonstrate:

(a)    some change in circumstances;

(b)    new evidence that was not able to be given previously; or

(c)    other circumstances that are exceptional or otherwise of such a nature that justice requires that the interlocutory relief be revisited:

Pivotel Satellite at [26] per Jagot J; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177-178; Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894 at [30] per Yates J; P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49] per Goldberg J; Greenbot Pty ltd v Clean Energy Regulator [2025] FCA 369 at [60] per Horan J.

Further, it would generally be inimical to the interests of justice to permit an applicant to re-litigate a matter to repair a deficiency in the evidence before the Court on a previous occasion that was the result of forensic choices: Liu v The Age Company Limited (2016) 92 NSWLR 679; [2016] NSWCA 115 at [14] per Beazley P; Tucker v McKee [2024] FCA 199 at [55]-[57] per Wheelahan J.

As was observed by McLelland J in Brimaud at 46, it would be conducive of great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

This is not, however, to fetter in some rigid way the ability of a Court to vary or discharge an interlocutory order. The overriding principle is that the court should do whatever the interests of justice require in the particular circumstances of the case: Brimaud at 46. What, however, is unlikely to be sufficient is merely that a different order might result if the matter was considered afresh on the basis of evidence that could have been (but was not) before the Court previously, or on the basis of submissions that could have been (but were not) made previously, or by a different judge.

11    The discretion to revisit and vary earlier interlocutory orders is to be exercised in the interests of justice in the particular circumstances (see also Luo v Zhai (No 6) [2016] FCA 805 at [15] (Perram J)). While there is a general policy favouring the finality of litigation, there are no rigid rules that circumscribe the exercise of that discretion (see Mendonca v Matthews Folbigg Pty Ltd [2022] NSWSC 764 at [45] and [47], citing Liu v Age Company Ltd [2016] NSWCA 115 at [13], [199] and [292]).

12    Given that this is a case where the earlier (interlocutory) orders were contested (albeit without an oral hearing) and intended to apply until final hearing, it is in my view necessary to demonstrate a change in circumstances since the earlier orders were made, or some other circumstance that is exceptional or otherwise of such a nature that the earlier interlocutory relief is to be revisited.

Change in circumstances

13    There are four circumstances identified by the parties that are said to have changed since the making of the earlier orders. First, the applicant has obtained a partial costs indemnity from a third-party funder. Secondly, it is now evident that the applicant was not out of pocket for the application fee to commence the proceeding, a factor that formed part of my consideration in Patrick (No 1) (see, eg, at [47]). Thirdly, the applicant is now represented by solicitors and senior and junior counsel on a pro bono basis subject to conditional costs agreements. Fourthly, upon receiving advice, the applicant has amended his notice of appeal (ANOA) with revisions to the questions of law and grounds of appeal, which raise constitutional questions, in respect of which a s 78B notice was filed by Mr Patrick on 10 December 2025.

Partial costs indemnity and the application fee

14    Mr Patrick has entered into a litigation funding agreement which presently provides the applicant with an adverse costs indemnity in the amount of $40,000. The Commonwealth parties submit that, consequently, Mr Patrick is no longer at any material financial risk under the earlier orders in the event that he fails in the proceeding and suffers an adverse costs order.

15    Further, the earlier orders were made on the basis that Mr Patrick had outlaid almost $10,000 for filing fees and transcripts (Patrick (No 1) at [65(9)]). Since the earlier orders were made, Mr Patrick has revealed that he used philanthropic funding from a third party to meet the Court’s application fee. The Commonwealth parties submit that the evidence no longer supports a finding that the applicant personally incurred an outlay of almost $10,000.

Legal representation

16    The applicant is now represented by solicitors and senior and junior counsel, each of whom is acting on a pro bono basis with a conditional costs agreement that requires the payment by Mr Patrick of legal fees if there is a favourable costs order made by the Court.

17    The evidence estimates the solicitor-client costs of Mr Patrick’s legal representatives to be $108,245, with an amount of $90,095 estimated to be recoverable. Mr Patrick’s legal representatives have indicated their willingness to continue in the proceeding even if the maximum costs order remains in place.

Amended notice of appeal

18    Pursuant to orders made on 8 December 2025, Mr Patrick filed the ANOA. The notice of appeal in its original form raised two questions of law. The first question was directed to the scope of s 45 of the Freedom of Information Act 1982 (Cth) (FOI Act) and its relationship with ss 47 and 47G of that Act. In my earlier reasons, I indicated that there were difficulties with Mr Patrick’s position on the first question, which would need to be overcome (Patrick (No 1) at [56]–[59]). That question of law is no longer pursued in the ANOA.

19    The scope of the second question of law was unclear. It stated:

Noting the Parliament granted a right of access to business information and documents under the FOI law where its disclosure is not contrary to the public interest, is it within power for the executive government to enter into a contracted confidentiality obligation that oust the public interest test (to the same business information and documents) under Section 45.

20    Relevantly, the grounds relied on were stated as follows:

The Tribunal’s [decision] permits and tacitly endorses an official entering into a particular common law contractual relationship which negates the statutory requirement to consider the public interest of disclosure in respect of business information and documents (because, again, in respect of business information and documents, there is no public interest consideration in Australian breach-of-confidence common law doctrine).

To the extent that a contracted obligation of confidence negates a statutory requirement, the official exceeds his or her power in entering into the contract, and the private law contract is invalid to the extent it is inconsistent with the public law.

In the circumstances of this case there is no valid mutual understanding of confidence for the purposes of section 45 of the FOI Act, as purported in paragraph 43 of the Tribunal’s decision.

21    In submissions made in response to Mr Patrick’s first application for a costs capping order, the Commonwealth parties expressed concern about the lack of precision in relation to that second question, and the potentially far-reaching implications for Commonwealth administration. Mr Patrick’s reply to those concerns indicated that the Commonwealth parties had misconstrued the scope of the question, and that “[t]he applicant does not seek to limit the ability of the executive to enter into confidentiality agreements … only to clarify that the limits/boundaries of such a private law contractual arrangements are such that they cannot oust a right granted by the Parliament”: Patrick (No 1) at [39]–[41].

22    I indicated in my earlier reasons that question two “might require amendment to reflect the precise ground being advanced”, but that it was apparent from Mr Patrick’s reply submissions that he “does not seek to challenge the capacity of the Commonwealth to enter into contracts containing confidentiality agreements”: Patrick (No 1) at [41].

23    The second question in its original form is no longer pursued in the ANOA. Instead, the ANOA sets out nine questions of law, two of which having sub-questions. Evidently, they are of wider compass than the original second question (or what was apparent on the face of the second question), and include questions about:

(1)    The limits on the Commonwealth government to enter into obligations of confidence with wholly owned Commonwealth companies.

(2)    The power of wholly owned Commonwealth companies to limit the use or disclosure by a Minister or the Minister’s Department of information which must be provided to the Minister under s 91 of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act).

(3)    The sufficiency of the Tribunal’s finding in relation to the existence of an enforceable obligation of confidence.

(4)    Whether the obligations of confidence referred to in guidelines made pursuant to the PGPA Act extend to benefit wholly owned Commonwealth companies.

(5)    Whether the obligation of confidence is affected by the constitutionally entrenched system of responsible and representative government.

(6)    The scope of the expression “action … for breach of confidence” in s 45 of the FOI Act.

(7)    Whether the expression “other than an agency or the Commonwealth” in s 45(1) includes a wholly owned Commonwealth company solely engaged in the performance of a public function.

(8)    Whether documents created internally by an agency are exempt documents under s 45 of the FOI Act.

24    The grounds relied on in the ANOA replace entirely the grounds set out in the original notice of appeal.

25    The respondents contend that the new questions of law are complex, raise novel constitutional issues, and significantly expand the scope of the proceeding. The affidavits supporting the respondents’ submissions estimate that the costs likely to be incurred by the respondents have increased:

(1)    For the Commonwealth parties (combined), from $60,000 to no less than $300,000; and

(2)    For Snowy, from at least $60,000 to a range of $225,000 to $249,000 (based on an estimate that Snowy’s costs are likely to be between 75% to 83% of the costs of the Commonwealth parties).

26    The following estimates were made of the amounts recoverable on an ordinary basis:

(1)    For the Commonwealth parties (combined), an amount of $230,000 (based on the recovery of two thirds of solicitor fees, and all of the counsel fees); and

(2)    For Snowy, an amount in the range of $168,750 to $186,750 (these figures appeared in Snowy’s written submissions applying a 75% recovery rate overall, and on the basis that Snowy will seek to minimise duplication and likely leave most of the work associated with the constitutional issues to the Commonwealth parties).

27    The Commonwealth parties’ costs were based on an estimated hearing duration of three days, whereas Snowy estimated a hearing of two days. Snowy indicated that if the Commonwealth parties’ estimate of the hearing duration was ultimately correct, its costs would be higher.

Mutuality of orders

28    It is important to address at the outset the premise of Mr Patrick’s interlocutory application that r 40.51 of the Rules does not require a mutuality of costs capping orders as between the parties. If correct, Mr Patrick would thereby be able to contend that a maximum costs order be put in place in his favour, but not in favour of the respondents.

Mr Patrick’s submissions

29    Focusing on the text of r 40.51, Mr Patrick made the following submissions:

(1)    There is nothing in the text that precludes the making of an order under r 40.51 that operates unilaterally and solely for the benefit of one party. Indeed, it was submitted that the text supports that construction:

(a)    The note to r 40.51 states: “Costs as between party and party is defined in the Dictionary”. The Dictionary defines the expression to mean “only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation”.

(b)    The word “party” includes the singular or the plural: Acts Interpretation Act 1901 (Cth) s 23(b); Legislation Act 2003 (Cth) s 13(1)(a).

(c)    Read together, r 40.51 authorises an order that specifies the maximum costs of one party, multiple parties, or all parties.

(d)    That reading is supported by (i) the structure of the provision that allows one party to apply for an order, (ii) the context where r 40.51 is to apply to the full range of proceedings that come before the Court, including where there are multiple parties, in which case the rule could not otherwise work sensibly, and (iii) ss 37M(2)(a) and 37M(3) of the Federal Court of Australia Act 1976 (Cth).

(2)    Drawing from what was said by Basten JA in Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 at [197], if r 40.51 were read down to prevent unilateral orders being made, the open standing provisions of the FOI Act (and other Commonwealth legislation) would be undermined (particularly when s 37M(3) is taken into account).

(3)    The only argument against taking that approach is the reasoning of Beazley J in Sacks v Permanent Trustee Australia Ltd (1993) 45 FCR 509 at 513. Her Honour’s construction assumes that there are only two parties to a proceeding, and does not work coherently across the range of proceedings to which it applies, bespeaking of error.

(4)    A small number of decisions of this Court have followed Beazley J’s reasoning: McGinn v Australian Information Commissioner [2024] FCA 1185 at [77] (Yates J); Shurat HaDin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [10] (Robertson J). However, those decisions do not turn on that reasoning.

(5)    Other judges have disagreed: Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources [2009] NSWLEC 165 at [12] (Preston CJ), in which costs capping orders were described as possibly being “unidirectional, bidirectional or multidirectional”.

The cases in this Court

30    I will commence with Beazley J’s reasoning in Sacks. Beazley J’s judgment addressed the now repealed O 62A of the Federal Court Rules 1979 (Cth), the predecessor to r 40.51. That rule provided:

(1) The Court may:

(a) by order made at a directions hearing; and

(b) of its own motion or on the application of a party;

specify the maximum costs that may be recovered on a party and party basis.

31    At 511, Beazley J extracted parts of a letter from the then Chief Justice to the President of the Law Council of Australia outlining options for changes to the costs rules. The letter was dated 6 November 1991, with O 62A being introduced by Statutory Rule 421 of 1992. Relevantly, the letter stated in relation to a suggested rule permitting the fixing of “a ceiling on the amount of costs recoverable from the unsuccessful party in the litigation”, that “the object of such a rule would be to define a budget so that the management of the case might be tailored according to its economic limits”: at 511. Her Honour’s reasons later stated (at 513, emphasis added):

Finally, it is important to bear in mind the intended effect of O 62A, r 2. The Order is specifically framed so as to inure for the potential benefit of both parties and not only for the benefit of the party bringing the application. The party who actually receives the benefit is the successful party. In this case, whilst the notice of motion is framed in compliance with the provisions of O 62A, it seems to me that the applicant is in fact seeking to have the benefit of such an order should he be unsuccessful, but that he does not necessarily propose that the respondents have the same benefit. As I have already stated, the applicant, in his substantive application, has made a claim for compensation for the time and effort which he has expended and will need to expend in the preparation of the proceedings. In addition, he makes a claim for loss of income and opportunity costs. He also makes a claim for costs. He did not argue that his claim for compensation and loss of income and opportunity costs be in any way restricted as he proposes the claim for costs should be. If the applicant wishes to pursue his claim for compensation, he is free to do so. However, in my opinion, he should not have the benefit of a rule designed to treat parties equally, in circumstances where he seeks to expose the opposing party to an unlimited claim for compensation for time and effort expended in the preparation of the proceedings, a great deal of which would, in a case where a solicitor was separately retained to act for the party, in fact be part of the party and party costs in the proceedings. It seems to me that the effect of what the applicant seeks to do is to potentially limit his own liability for the payment of legal costs, yet not give a like benefit to the respondents. For that reason also, I do not consider this to be an appropriate case in which to make an order under O 62A.

32    This Court has declined to make a unilateral order on a number of occasions. In Muller v Human Rights and Equal Opportunity Commission [1997] FCA 634, having referred to the reasoning extracted above, Moore J said that (emphasis added):

O62A is framed in terms which indicate that at least its principal purpose is to invest the court with a power to limit at the outset of litigation the potential liability of all parties flowing from a costs order made after proceedings had been heard and determined. … In the present case the plain purpose of the proposed order under O62A is to shield Mr Muller from a costs order being made against him while permitting the recovery of costs if an order was made against the Commonwealth. There is clear authority in this Court that O62A is intended to facilitate the making of an order inuring to the benefit of both parties…

33    His Honour also referred to the earlier comments of Drummond J in Maunchest Pty Ltd v John Lindsay Bickford (Federal Court of Australia, Drummond J, 7 July 1993) to the effect that O 62A did not authorise the Court to make an order imposing a cap only on the applicant’s costs. In Hanisch v Strive Pty Ltd [1997] FCA 303; 74 FCR 384, Drummond J (at 390) repeated the same view (emphasis added):

In Sacks, Beazley J, at 513, said that the rule was designed to treat parties equally and rejected a submission by one party that the Court was empowered to make an order under O 62A that would fix the maximum costs recoverable by one party, should that party succeed, but leave it open to the other party to recover its full costs, should it succeed. I expressed the same conclusion as to the operation of O 62A in Maunchest Pty Ltd v Bickford ... I adhere to that view.

34    Citing Hanisch in support, Bennett J said in Corcoran v Virgin Blue Airlines [2008] FCA 864 at [5] (emphasis added), that “[a]n order made pursuant to O 62A r 1 applies equally to all parties to the proceedings”. The differential costs caps imposed by her Honour at [61] applied, respectively, to separate proceedings.

35    In Shurat, Robertson J refused to make an order in the applicants’ favour only. His Honour said (at [10]) (emphasis added):

To the extent that the applicants seek a maximum costs order in their favour only, I refuse that application. I see no reason why such an order should be made. Decisions of this Court under the previous corresponding rule have held that an order made pursuant to that rule must apply in favour of both parties and could not be made solely for the benefit of one party to the proceedings…

36    Maunchest, Muller, Hanisch and Sacks were cited in support. His Honour proceeded to note that (at [11]):

Assuming I have the power to do so, I see no reason to exercise my discretion differentially as between the applicants and the respondent in this respect even if the applicants’ party-party costs are lower in that one of the applicants, Mr Hamilton, has done much of the appearance work so far.

37    In oral submissions, senior counsel for Mr Patrick made much of this second passage in support of the proposition that r 40.51 confers a discretion to make an order more favourable to one party. However, those further comments, which were made following his Honour noting that the estimated costs differed between the parties, proceeded on the premise of an assumption of power (“assuming I have the power to do so”). They do not diminish Robertson J’s preceding observations that there is a line of authority that such an order “must apply in favour of both parties”.

38    In McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [76], Beach J briefly noted, without reference to authority, that “there are no fixed criteria or constraints for the making of a costs capping order under r 40.51 save that it should be bilateral” (emphasis added).

39    Finally, in McGinn, Yates J considered an application for a unilateral order under r 40.51(1) of the Rules setting the costs cap for the applicant at $0, but leaving open full recovery by the applicant. His Honour stated (at [76]) (emphasis added):

There are other difficulties with the application for a costs-capping order. Rule 40.51 does not permit a “unilateral” costs-capping order, such as the applicant seeks. The order must apply in favour of both parties and cannot be made solely for the benefit of one party to the proceeding …

40    Shurat and McKay were cited in support of that proposition.

41    In oral submissions, senior counsel for Mr Patrick also referred to a number of other cases including King v Virgin Australia Airlines Pty Ltd [2014] FCA 36 (Foster J); Houston v State of New South Wales [2020] FCA 502 (Griffiths J); Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435 (Thawley J); and Bradlow v Australian Electoral Commissioner [2025] FCA 1172 (Raper J). However, while each of those cases considered the factors to be taken into account in making an order under r 40.51, none of those cases dealt with the particular issue in question before me.

The accepted approach is not plainly wrong

42    In my view, it is clear that the accepted approach to r 40.51 (and O 62A before it) is that it does not authorise the making of a maximum costs order to benefit one party only. The order must apply equally to all parties. As Beazley J said in Sacks, the order is framed “to inure for the potential benefit of both parties and not only for the benefit of the party bringing the application”. That view has been the foundation for the Court’s endorsement of that approach in subsequent cases. I am not satisfied that it is “plainly wrong”: Pitman v Federal Commissioner of Taxation [2021] FCAFC 230; 289 FCR 286 at [10] (Davies J, Allsop CJ and Bromwich J agreeing); Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] (French J, as his Honour then was).

43    In my view, the more natural reading of the provision aligns with that accepted approach. The order must specify the maximum costs as between party and party that may be recovered for the proceeding. Prima facie, the words “as between party and party” suggest a requirement of mutuality. However, the transmutation effected by the definition of “costs as between party and party”, which serves to identify the basis upon which costs are to be awarded, might properly be said to negate that prima facie requirement of mutuality.

44    However, as the respondents submitted, the expression “for the proceeding” contains words of limitation. Mr Patrick contended that the only work those words perform is to ensure that the costs capping order relates only to the proceeding in question. However, that position is not incompatible with a construction of the provision that gives effect to the accepted approach. That is, the words also operate to designate that the maximum costs order must circumscribe the recoverable costs for the proceeding. That can only be achieved if the maximum costs order applies to all parties in that proceeding.

45    The position is not advanced by resort to s 37M(2) (particularly subsection (2)(a)) of the Federal Court Act. What is required by the “just determination” of the proceeding merely begs the question.

46    The principal purpose of r 40.51(1), as identified by Thawley J in Australians for Indigenous Constitutional Recognition, and endorsed by Raper J in Bradlow (at [6]), is consistent with that accepted position. That principal purpose was stated by Thawley J as (at [7], emphasis added):

not so much a desire to limit the exposure to an adverse costs order in complex and lengthy commercial litigation, but rather to address concerns as to access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases …

47    Contrary to what senior counsel for Mr Patrick suggested in oral submissions, it is not clear to me that what Raper J said in Bradlow was a criticism of Beazley J’s reasoning in Sacks. Rather, Raper J’s comments appear to be directed to the selective use by the applicants in that case of passages from the Chief Justice’s letter.

48    I accept that, in the case of multiparty disputes, there might be added complexity in applying r 40.51(1). However, how the interests of multiple parties are to be accommodated can be determined as a matter of discretion when exercising (or deciding not to exercise) the power in r 40.51(1) to make orders that apply equally to the parties. That is also the case in circumstances where legislation contains open standing provisions. Because this is an application to vary my earlier orders, and because of the orders that I will make, it is not necessary for me to consider whether Mr Patrick was correct in characterising the FOI Act as an open standing scheme.

49    In short, I am not persuaded that the text or purpose of r 40.51(1) leads to a conclusion that the accepted approach is plainly wrong.

Reliance on cases in other jurisdictional contexts

50    Mr Patrick relied upon Caroona and Delta Electricity. However, those cases considered the operation of r 42.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which is expressed in materially different terms: the Court can make an order to “specify the maximum costs that may be recovered by one party from another” (emphasis added).

51    Further, I agree with the following points made by the respondents contrary to Mr Patrick’s submissions:

(1)    Basten JA in Delta Electricity did not express doubt about the correctness of the accepted approach to O 62A. At [187], his Honour characterised the view of Drummond J in Maunchest (which was repeated in Hanisch) that O 62A required “that any order made bind both (or all) parties to the litigation”, but his Honour noted that “the language of the UCPR imposes no such requirement”.

(2)    The relevant part of Basten JA’s judgment in Delta Electricity was not referred to by Nicholas J in Haraksin v Murrays Australia [2010] FCA 1133. In relation to the operation of O 62A, Nicholas J (at [29]) only referred to Basten JA’s reasons at [198]–[203] which were directed to the interaction of r 42.4(1) of the UCPR and r 4.2 of the Land and Environment Court Rules 2007 (NSW) (LEC Rules), which confers a discretion upon the Court not to make a costs order if the proceeding has been brought in the public interest. Against the background of r 4.2 of the LEC Rules, Basten JA addressed the appropriateness of approaching r 42.4(1) of the UCPR on the assumption that, absent misconduct by a party, costs will follow the event. His Honour stated that the Court’s satisfaction that proceedings have been brought in the public interest (as contemplated by r 4.2 of the LEC Rules) “provides an affirmative reason for not making an order against an unsuccessful applicant, and thus qualifies the operation of UCPR r 42.1, which would otherwise be applicable” (at [203]). It was in that context that Nicholas J said the following in Haraksin (at [29]):

Whether or not it would be appropriate to order the applicant to pay the respondent’s costs in the event that she is unsuccessful in this proceeding is something about which I do not find it necessary to express any opinion. While I have approached the matter on the assumption that such an order would be made, it remains to be seen whether that is what actually occurs. I should add that it may not always be appropriate to approach an application under O 62A r 1 in this way: cf. Delta Electricity at [198]-[203] per Basten JA.

That says nothing about the scope of O 62A to make a unilateral costs capping order.

(3)    Beazley JA in Delta Electricity did not refrain from making any comment on the question of unilateral orders. Her Honour considered that the approach applied in Sacks, Maunchest and Muller also applied to r 42.4: “UCPR, r 42.4 does not apply for the benefit of the applicant only: if an order is made, it extends to both parties” (at [68]).

52    Mr Patrick also relied upon the decision of the English Court of Appeal in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; 4 All ER 1. However, that case concerns the making of protective costs orders pursuant to general provisions controlling the Court’s discretion to order costs (see at [64]–[65]). Those provisions are not equivalent to r 40.51.

No order would be made in any event

53    Even if I were to have concluded that it was possible to make a unilateral costs capping order only in Mr Patrick’s favour, I would not have been persuaded to make such an order in the circumstances in this case. While I have accepted that “there is a public interest dimension to the proceeding” (Patrick (No 1) at [30]) and that Mr Patrick does not seek to vindicate a private interest (Patrick (No 1) at [42]), I am not persuaded that those matters alone justify making such differential orders.

54    While Mr Patrick is correct to say that, under the normal costs rule, he would be entitled to his costs if successful, the question that would arise under r 40.51 of the Rules (if it were assumed that a unilateral order were possible) is whether such an order is justified according to the dictates of justice. Fairness to all parties commonly suggests that an order should apply equally: see Caroona at [28]. On the facts in this case, Mr Patrick, as the applicant in this proceeding, draws the respondents into litigation — litigation that now raises more extensive questions with a greater measure of complexity — and seeks a maximum costs order in his favour. Leaving aside a matter to which I will return below (the allegation that the Commonwealth parties failed to use their best endeavours to assist the Tribunal), I am not satisfied that Mr Patrick has pointed to any matter that would justify a unilateral costs order in his favour only.

55    In oral submissions, senior counsel for Mr Patrick contended in the alternative that if the power in r 40.51(1) is restricted to capping the costs of all the parties, there is no requirement that the caps be equal. However, Mr Patrick’s application is not in those terms: the order sought was that there be no maximum costs order restricting recovery of costs from the respondents. In any event, I consider that a requirement that the caps be equal is implicit in the position taken in the cases outlined above. Further, even if it were possible to have variability in the caps, for similar reasons to those set out in [53]–[54] above, I would not have been satisfied that such an order should be made.

Consideration of changes in circumstances

56    Accordingly, I approach the applications to vary the earlier orders on the basis that r 40.51 of the Rules requires mutuality in the operation of the maximum costs order.

57    I accept the Commonwealth parties’ submission that the costs indemnity is a changed circumstance that justifies the Court revisiting the maximum costs order. As a consequence of the indemnity, Mr Patrick is no longer at any material financial risk (see Patrick (No 1) at [65(1)]). Senior counsel for Mr Patrick submitted at the hearing that it was open to Mr Patrick to seek an indemnity following the making of the earlier orders and, accordingly, the indemnity is immaterial to the assessment of a revised cap. I do not agree. A premise underlying the earlier orders (see Patrick (No 1) at [65(1)]) was the need for Mr Patrick to be at some material financial risk in the event that he is not successful in the proceeding and suffers an adverse costs order. The existence of the indemnity is a changed circumstance that bears directly on that premise, and senior counsel for Mr Patrick at the hearing confirmed that there is no reason to doubt that the indemnity will be fulfilled.

58    Furthermore, the payment by Mr Patrick of almost $10,000 for filing fees and transcripts was factored into the amount of the cap (Patrick (No 1) at [65(9)]). The new evidence that the applicant did not bear fully the expense of the Court fees is also a change in circumstances that must be taken into account.

59    As to the ANOA, it is clear that the scope of the appeal is now enlarged. Mr Patrick pointed to passages in my earlier reasons that indicate that the questions of law are “confined, or likely confinable with appropriate amendment of the Notice of Appeal” (Patrick (No 1) at [38]), and submitted that the ANOA focuses squarely on the issue identified “as central to the proceeding but confined and involving no serious factual dispute”. However, as the questions of law now appear in the ANOA, they evidently enlarge to a significant extent the questions to be determined and which now involve a greater measure of complexity.

60    This conclusion, however, points in different directions:

(1)    On the one hand, because Mr Patrick is not pursuing the first question of law in the original notice of appeal, the difficulties that I alluded to in my earlier reasons are no longer present (Patrick (No 1) at [65(2)]). Further, while I have not considered the strength of the new grounds in any detail, I consider the new questions of law to be important and sharpen the public interest in having the questions determined. They are also questions in relation to which the Commonwealth parties have a particular interest in resolving.

(2)    However, on the other hand, the new questions undoubtedly will increase the complexity of the matters to be determined and extend the duration of the hearing (and, thereby, increase the costs of the proceeding) from what was assumed to be less than a day when the earlier orders were made. The parties provided different estimates ranging from one to three days for the hearing, although during the hearing the parties appeared to converge on two days as a reasonable estimate. I agree that a two-day hearing is a reasonable estimate for the purposes of setting a maximum costs order.

61    Given the foregoing, I am satisfied that there are changed circumstances that justify the variation of my earlier orders.

62    As to the amount of the maximum costs order, I have taken account of the following considerations:

(1)    Because of the costs indemnity agreement and the changed information about the payment of the filing fees and transcript costs, a total costs cap of $40,000 is no longer justified.

(2)    Snowy contends that Mr Patrick’s financial position is now clearer and that “he has ample means to meet a costs liability of $300,000”. However, Mr Patrick’s net asset position is not materially different to what the position was at the time of the earlier orders. In the context of a person nearing retirement, the difference between an asset position of less than $1 million (the previous position) and $1.1 million (the updated position) does not substantially change Mr Patrick’s financial vulnerability if required to satisfy an unfavourable costs order.

(3)    As I said in my earlier reasons, I do not consider it to be consistent with the purpose of r 40.51 of the Rules to set an amount equivalent to what has been estimated to be a recoverable amount on a party/party basis (Patrick (No 1) at [65(4)]). On an estimate of two days, the amount recoverable by the respondents in total would be in the vicinity of $350,000 (discounting the estimate of the Commonwealth parties from three days to two days and taking a conservative approach to Snowy’s estimate). While the respondents’ costs will now increase considerably, and there should remain some relation between the recoverable costs and the amount of the maximum costs order, the increased costs must be balanced against the importance of the new questions and the public interest in having them resolved.

(4)    Mr Patrick contends that, given his financial position, he is not able to bear any costs. However, as I said in my earlier reasons, I need to “balance the evident purpose of r 40.51 of the Rules ‘to limit the exposure of a party to an adverse costs order where the particular circumstances justify the exercise of the discretion’ with the need for the applicant to be ‘at some material financial risk in the event that [he] fails in the proceeding and suffers an adverse costs order’” (Patrick (No 1) at [65(1)]).

(5)    Because of (a) the costs indemnity and (b) the level at which I will set the new costs cap, it is not necessary to consider any further Mr Patrick’s financial capacity to bear that potential liability exposure and the prospect that he will discontinue the proceeding. The risk to his financial security, and prospects of discontinuance, are not materially different to the position underlying the earlier orders.

63    Having regard to the changes in circumstances, I consider that a variation of the costs cap for the proceeding as between each of the parties from $20,000 to $45,000 is justified.

64    For completeness:

(1)    That the earlier orders were made on the basis that Mr Patrick was unrepresented and that, if successful, the respondents would not be exposed to liability (Patrick (No 1) at [46]) was raised by Mr Patrick and the Commonwealth parties. That was a factor taken into account in favour of a costs capping order being made, rather than a matter going to quantum. I do not consider that it affects in any material way the level at which the cap is to be set.

(2)    In oral submissions, senior counsel for Mr Patrick contended that the proper approach to r 40.51 is to ask a series of questions: (1) is it a public interest case? (2) does the applicant have a personal direct interest? (3) will the proceeding be discontinued? (4) would that discontinuance be reasonable? If so, then there is a prima facie case for a cap at a level which would avoid discontinuance and that is proportionate to the amount of recoverable costs. I see no reason why such a structured approach should be adopted. There is nothing in the authorities to support it. There is also a question, which is unnecessary to pursue on these applications, whether there is a difference between asking, on the one hand, whether a party’s decision to discontinue the proceeding if a maximum costs order is not made would be reasonable and, on the other hand, asking whether the party will be forced to abandon the proceeding if a costs capping order is not made.

(3)    The Commonwealth parties submitted that there remains at least some prospect that the applicant may obtain further funding for his proceeding. However, that is a prospect that has not yet crystalised. As it currently stands, Mr Patrick deposes that he has made enquiries with his third-party funder as to the possibility of increased funding, which was answered in the negative.

(4)    The respondents contended in written submissions that the principal purpose of r 40.51 is to equip the Court with the power to limit exposure to costs in less complex cases: relying on Hanisch at 387 (cited in McKay at [72]), Sacks at 511 (cited in McKay at [71]). However, as was accepted by the Commonwealth parties during the hearing, the complexity of the case is only one factor to be considered (albeit that, depending on the nature of the complexity involved, it may be a factor that weighs against the making of an order) (see Bradlow at [20]–[21] and [24]). As Bennett J said in Corcoran, “[t]hat … is not a limitation on the availability of an order” and “[t]here is no reason why [O 62A] should not apply, in appropriate situations, to cases that are somewhat complex” (at [53]). While I accept that the legal questions are likely to involve a good measure of complexity (with constitutional dimensions) that will require very close attention, the increased complexity (and perhaps novelty) contributes to the public interest in the context of this case in having these matters resolved. By contrast, there is unlikely to be any factual complexity to be resolved.

(5)    Mr Patrick also submitted that the earlier orders incorrectly proceeded on the assumption that what is required by r 40.51(1) of the Rules is mutuality in the costs that may be recovered by a party. Instead, it was submitted that r 40.51(1) should be approached on the basis of the maximum costs that may be recovered from a party. Consequently, it was submitted that the effect of the earlier orders was to cap the costs that may be recovered from Mr Patrick at $40,000 while capping recovery from, respectively, the Commonwealth parties, and Snowy, at $20,000 each. Any complexity in the application of r 40.51(1) to a proceeding involving multiple parties is not resolved by drawing a distinction between costs recoverable by or costs recoverable from a party. Rule 40.51(1) is expressed in terms of an “order specifying the maximum costs as between party and party that may be recovered for the proceeding” (emphasis added). The maximum costs recoverable by Mr Patrick for the proceeding was $40,000 (and now, by virtue of the orders I now make, is to be $90,000) and the maximum costs recoverable from Mr Patrick for the proceeding was $40,000 (and now, by virtue of the orders I now make, is to be $90,000). The total sums that can be recovered are the same as between the parties, treating the Commonwealth parties collectively — there is no disparity. It was not contended by any of the parties (and I should not be taken as suggesting) that the maximum costs order should be applied on the basis that the Commonwealth parties should be treated, for the purposes of r 40.51, as formally distinct parties so that the maximum costs orders should be applied as between Mr Patrick and each of those parties. That would result in a total maximum amount recoverable for the proceeding by and from Mr Patrick of $135,000.

Use of best endeavours to assist the tribunal

65    In support of his application, Mr Patrick submitted that the Commonwealth parties failed to use their best endeavours to assist the Tribunal. It was accepted by the Commonwealth parties that, at the time of the Tribunal proceeding, they were subject to the duty in s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), now found in equivalent terms in s 56(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), to use best endeavours to assist the Tribunal to make its decision. I will proceed on the basis that s 33(1AA) was applicable at the time of the Tribunal hearing, but the analysis applies equally to the equivalent provision in s 56(1) of the ART Act.

66    To provide context, it is necessary to outline one of the arguments to be put on appeal; that is, that the Tribunal erroneously adopted a “five criteria” test purportedly set out in Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; 14 FCR 434 at 443 for establishing a breach of confidence.

67    In written and oral submissions, Mr Patrick contended that the duty owed by the Commonwealth parties was breached in three respects. First, that in written submissions to the Tribunal, the Commonwealth parties relied on the five criteria test purportedly drawn from Corrs Pavey, but that the cases offered in support of that submission did not in fact support that test.

68    Secondly, there was a failure to adequately refer the Tribunal to two previous decisions of the Tribunal which dealt with the precise issues in a way that did not support the Commonwealth parties’ submissions. It was submitted that, in Callejo and Department of Immigration and Citizenship [2010] AATA 244, Forgie DP considered that an action is founded on a breach of confidence for the purposes of s 45(1) of the FOI Act if the elements of liability for breach of confidence are made out; it is not enough that there be a cause of action for breach of a contractual obligation of confidence. However, it was submitted that the oral submissions advanced before the Tribunal by Snowy, and then adopted by the Commonwealth parties, were inaccurate: that is, Snowy incorrectly submitted that Forgie DP posited a false binary between a breach of contract and a breach of an obligation of confidence, and found that an action in contract is not an action for breach of confidence.

69    I was then taken to the transcript of the hearing before the Tribunal for the purpose of establishing that counsel for Snowy had presented a tendentious submission to the Deputy President and that the legal representative for the Commonwealth parties then agreed with Snowy’s submission. Senior counsel for Mr Patrick submitted that, in a busy tribunal, the tribunal member is entitled to rely upon Commonwealth parties fulfilling their duty. If a tendentious submission is made, the tribunal must be referred to the relevant passages upon which it is based. It was submitted that, in the context of the exchange before the Tribunal, the Deputy President below was entitled to rely on an assurance from Snowy’s counsel, then adopted by the Commonwealth parties, that the Tribunal did not have to read Callejo because Forgie DP was wrong.

70    It was also contended in written submissions that the respondents had not taken the Tribunal to the decision in Sullivan v Department of Industry [1997] AATA 192; 49 ALD 743 at 750–753 which was said to bear directly upon the question.

71    Thirdly, Mr Patrick submitted that the respondents did not adequately deal with the High Court’s decision in Esso Australia Resources Limited v Plowman (1995) 183 CLR 10. Relevantly to the Commonwealth parties, it was submitted that they merely sought to distinguish Esso on the basis that the entities there in question were “public authorities”, with no page reference provided. However, it was submitted by Mr Patrick that the reasoning of Mason CJ extended to “statutory authorities or public utilities” (Esso at 32), and that the effect of the submission was to invite the Tribunal to decide the case inconsistently with Mason CJ’s reasoning. It was submitted that the Commonwealth parties’ duty was not performed by the making of tendentious submissions without telling a busy tribunal the basis upon which the Tribunal can be satisfied that the case can be distinguished.

72    As to the content of the duty, Mr Patrick referred to GNHW v Minister for Immigration and Citizenship (No 2) [2025] FCA 1578. However, while the duty in s 56 was referred to by Logan J in that case (see at [45], [54]–[56]), it is clear that, contrary to Mr Patrick’s submission, his Honour did not conclude that there was a breach of s 56 in that case.

73    To the contrary, his Honour (at [54]) (a) stated that he was not “embarking upon a consideration of whether s 56 of the ART Act gives rise to an obligation”, and (b) referred to the observations of Siopis and White JJ in Shord v Federal Commissioner of Taxation [2017] FCAFC 167; 253 FCR 157 to the effect that s 33(1AA) of the AAT Act imposed an obligation that was “aspirational or exhortatory in nature, rather than [operating] as a source of directly enforceable rights and obligations”: at [127].

74    For the following reasons, I am not persuaded that I should take account of these alleged contraventions of s 33(1AA) of the AAT Act for the purposes of the applications to vary the earlier orders.

75    First, the matters raised are put in favour of a submission that a cap on costs should not be ordered against the Commonwealth parties. That submission is premised on the possibility that a unilateral order can be made under r 40.51(1). I have concluded above that I do not consider that possibility to be within power.

76    Secondly, I have not been persuaded that s 33(1AA) of the AAT Act (or s 56 of the ART Act) gave rise to an enforceable duty, the failure to comply with which can inform the operation of r 40.51(1). As mentioned above, there are Full Court observations indicating that s 33(1AA) of the AAT Act was only aspirational or exhortatory in nature.

77    Consequently, I make no finding in relation to the alleged failures by the Commonwealth parties to comply with s 33(1AA) of the AAT Act, and I should not be taken as accepting or assuming the correctness of Mr Patrick’s submissions in this respect. This is not a matter for me to determine at this stage.

Disposition

78    In conclusion, Mr Patrick’s application to vary the earlier orders is dismissed.

79    I accept the respondents’ submissions that the maximum costs order should be varied, although not to the extent to which the respondents contended. I make orders pursuant to r 39.05(c) of the Rules varying the earlier orders so as to set the maximum costs recoverable for the proceeding as between the parties at $45,000. The upshot is that, if unsuccessful, and the usual costs rule applies, Mr Patrick will be exposed to a total costs liability of $90,000 (although, as noted, he has the benefit of an indemnity up to $40,000).

80    Since no party has been entirely successful in achieving the orders that they sought or supported (in the case of the respondents, while the costs cap has been varied, the variation is not to the extent sought or supported), I consider it to be appropriate for the costs of the parties to be costs in the proceeding.

Associate:

Dated:    26 May 2026