Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 June 2007
• Neutral Citation: [2007] FCA 974

FEDERAL COURT OF AUSTRALIA

Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974

COSTS - whether proceedings of such a nature as to persuade the Court to exercise discretion to depart from the ordinary rule as to costs - substantive proceedings concerned the issue of locus standi of incorporated association to bring an action pursuant to the Disability Discrimination Act 1992 (Cth) – whether success in part – whether proceedings in the public interest - conduct of the parties

Held: Respondent not “only successful in part”. Proceedings not of “public interest” such as to justify departure from the ordinary rule as to cost. No misconduct by the respondent. Unsuccessful applicant to pay respondent’s costs.

Disability Discrimination Act 1992 (Cth) ss31, 32

Federal Court of Australia Act 1976 (Cth) s 43

Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 related

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 cited

Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349 distinguished

Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 cited

Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 distinguished

Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1 cited

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458 distinguished

Fetherson v Peninsula Health (No 2) [2004] FCA 594 cited

Griffiths v Boral Resources (Qld) Pty Ltd (No 2) (2006) 157 FCR 112 distinguished

Holder v Searle (1998) 44 IPR 1 distinguished

Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 distinguished

King v Yurisich (No 2) [2007] FCAFC 51 cited

Latoudis v Casey (1990) 170 CLR 534 cited

Oshlack v Richmond River Council (1998) 193 CLR 72 distinguished

Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 applied and distinguished

Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 cited

Sluggett v HREOC [2002] FCA 1060 cited

Tate v Rafin [2000] FCA 1582 cited

ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC v HERVEY BAY CITY COUNCIL

QUD76 OF 2006

COLLIER J

29 JUNE 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD76 OF 2006

BETWEEN:	ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
AND:	HERVEY BAY CITY COUNCIL Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	29 JUNE 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The order made 2 May 2007 that Access for All Alliance (Hervey Bay) Inc pay Hervey Bay City Council’s costs of and incidental to the application, to be taxed if not otherwise agreed, is confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD76 OF 2006

BETWEEN:	ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
AND:	HERVEY BAY CITY COUNCIL Respondent

JUDGE:	COLLIER J
DATE:	29 JUNE 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 When I delivered judgment in this matter on 2 May 2007 (Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615) my orders were as follows:

1. The application filed by Access for All Alliance (Hervey Bay) Inc on 5 May 2005 be dismissed.

2. Access for All Alliance (Hervey Bay) Inc pay Hervey Bay City Council’s costs of and incidental to the application, to be taxed if not otherwise agreed.

2 At that time, Ms Banks for the applicant, Access for All Alliance (Hervey Bay) Inc (“the applicant”) said that the applicant sought to be heard on the issue of costs in respect of the proceedings, and asked if I could reconsider that aspect of my judgment in terms of giving the applicant an opportunity to be heard. Mr Green for the respondent neither consented to nor opposed this course. While it is usual that costs follow the event, in the circumstances of this case I indicated to the parties that I would entertain receiving written submissions from the applicant as to costs, and a written reply from the respondent, and gave orders to this effect.

BACKGROUND

3 The application filed 5 May 2005 concerned a claim by the applicant that the respondent had contravened the Disability Standards made pursuant to the Disability Discrimination Act 1992 (Cth) (DD Act) in respect of bus stop infrastructure installed or substantially changed since 23 October 2002, and sought relief against the respondent pursuant to s 46PO Human Rights and Equal Opportunity Act 1986 (Cth) (HREOC Act) and ss 31 and 32 DD Act.

4 The matter came before me on 5 September 2006 regarding an application filed 19 August 2005, by the respondent to the substantive proceedings, seeking orders that:

· the application in the substantive proceedings be dismissed; and

· the applicant pay the respondent’s costs of and incidental to the application.

5 As I noted earlier, in my judgment I found in favour of the respondent and dismissed the application in the substantive proceedings with costs.

6 The applicant filed written submissions on costs on 9 May 2007. The respondent’s written submissions on costs in reply were filed on 17 May 2007.

RELEVANT LEGAL PRINCIPLES

7 An order for costs is clearly discretionary in nature (s 43 Federal Court of Australia Act 1976 (Cth)), although in the ordinary course of proceedings costs follow the event (cf Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235; Griffiths v Boral Resources (Qld) Pty Ltd (No 2) (2006) 157 FCR 112). This is because an order for costs is not a punishment of the party against whom the order is made, but is intended to serve to indemnify a successful party against the expense to which it has been put by the litigation (Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72; King v Yurisich (No 2) [2007] FCAFC 51 at [19]).

8 As noted by McHugh J in Oshlack 193 CLR at 97, the traditional exceptions to the usual order as to costs focussed on the conduct of the successful party where its conduct disentitled it to the beneficial exercise of the judicial discretion. His Honour in that case cited Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 at 874 where Devlin J said:

“No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.”

9 The ambit of traditional exceptions has widened however in recent times in Australia to include, in limited cases, issues of public interest (Oshlack 193 CLR 72, Ruddock v Vadarlis 115 FCR 229) and certain circumstances where a litigant has succeeded only upon a portion of a claim (so that the court may find it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed) (Ruddock v Vadarlis 115 FCR 229).

10 The issue for consideration in this case is whether there is anything about these proceedings which would persuade me to exercise my discretion to depart from the usual course (cf Ruddock v Vadarlis 115 FCR 229; Oshlack 193 CLR 72; Tate v Rafin [2000] FCA 1582). Such a departure requires, as a general proposition, a valid special reason (Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1 at 25 per Beaumont ACJ, Higgins and Gyles JJ agreeing). In considering the submissions of the applicant in support of a reconsideration of my costs order, while I note the helpful cases to which my attention has been drawn, I also note and adopt comments of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 where his Honour said:

“In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a ‘wilderness of single instances.’” (at [12])

11 Accordingly, the costs discretion of the Court is a discretion to be exercised judicially and not against the successful party except for some reason connected with the circumstances of the particular case (Oshlack 193 CLR at 81 per Gaudron and Gummow JJ; Black CJ and French J in Ruddock v Vadarlis 115 CLR at 234).

SUBMISSIONS OF THE APPLICANT

12 The applicant has submitted that costs do not always follow the event where:

· there has been success in part by a litigant: Ruddock v Vadarlis 115 FCR 229;

· the public interest so warrants a departure from the usual rule: Ruddock v Vadarlis 115 FCR 229, Oshlack 193 CLR 72;

· the conduct of the successful party at the trial was such as to unreasonably prolong the proceedings: Ruddock v Vadarlis 115 FCR 229.

13 The submissions of both the applicant and the respondent addressed each of these points, and I propose to consider them in that order.

SUCCESS IN PART

14 As pointed out by Black CJ and French J in Ruddock v Vadarlis 115 FCR at 235, where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she...