BDR21 v Australian Broadcasting Corporation (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 02 November 2021
• Neutral Citation: [2021] FCA 1347
• Date: 02 November 2021

Federal Court of Australia

BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347

File number(s):	NSD 290 of 2021
Judgment of:	HALLEY J
Date of judgment:	2 November 2021
Catchwords:	COSTS – where respondent gave notice of intention to file interlocutory application in relation to statement of claim – where applicant gave no indication of intention to amend statement of claim – where respondent subsequently filed interlocutory application and supporting affidavit, and applicant then served an amended statement of claim – application of 18(2)(b) of the Public Interest Disclosure Act 2013 (Cth) – whether any act or omission of the applicant was unreasonable and caused the respondent to incur costs – where applicant’s conduct not sufficiently unreasonable – where costs thrown away cannot be calculated with precision – no order as to costs
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) s 37M Parliamentary Privileges Act 1987 (Cth) Public Interest Disclosure Act 2013 (Cth) s 18 Revised Explanatory Memorandum, Public Interest Disclosure Bill 2013 (Cth)
Cases cited:	Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 Hutchinson v Comcare (No 2) [2017] FCA 370 Hutchinson v Comcare (No 5) [2019] FCA 1665 Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 Tran v Kodari Securities Pty Ltd (No 2) [2020] FCA 1819 Tucker v State of Victoria [No 2] [2021] VSCA 182
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	50
Date of hearing:	Determined on the papers
Counsel for the Applicant:	The Applicant was self-represented
Counsel for the Respondent:	Ms Z Heger
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 290 of 2021
BETWEEN:	BDR21 Applicant
AND:	AUSTRALIAN BROADCASTING CORPORATION ABN 52 429 278 345 Respondent

order made by:	HALLEY J
DATE OF ORDER:	2 November 2021

THE COURT ORDERS THAT:

1. There be no order as to costs in relation to the interlocutory application dated 25 June 2021 or the service of the Amended Statement of Claim on 15 June 2021.

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

REASONS FOR JUDGMENT

HALLEY J:

Introduction

1. On 17 August 2021, I made orders striking out paragraphs and for summary judgment with respect to causes of action sought to be advanced by the applicant in an amended statement of claim (ASOC). I also made orders on that date providing that in the absence of a consent position, the parties file written submissions with respect to the payment of costs and any evidence in support, and the issue of costs would then be determined on the papers unless either party sought an oral hearing.

2. The parties have now filed written submissions on costs.

3. The respondent seeks an order that the applicant pay its costs that it alleges were thrown away by the late service of the ASOC in a gross sum amount of $3,375 (excluding GST) (Gross Sum), or alternatively as agreed or assessed.

4. The applicant opposes the making of any costs order, and submits that if costs were to be awarded, those costs should be either “assessed or a substantially lower lump sum”.

5. The respondent relies on affidavits of Jonathon Hutton affirmed 27 August 2021 and 30 August 2021 that set out the relevant factual background and the basis upon which the Gross Sum amount was calculated.

6. Neither party requested an oral hearing.

7. I have concluded that no costs order should be made because I am not satisfied that in all the circumstances the conduct of the applicant was sufficiently unreasonable to enliven the discretion to award costs against the applicant pursuant to s 18(2)(b) of the Public Interest Disclosure Act 2013 (Cth) (PID Act).

Background

8. On 19 May 2021, the applicant served a statement of claim in the proceedings (SOC).

9. On 1 June 2021, the respondent wrote to the applicant contending that aspects of the SOC were the subject of parliamentary privilege, requesting further particulars and advising that unless the SOC was amended to address these issues the respondent would file an application seeking orders for summary dismissal or the striking out of the offending aspects of the SOC (1 June 2021 letter). It also stated that it would rely on the letter on the question of costs.

10. On 2 June 2021, the respondent emailed proposed short minutes that it had inadvertently omitted to include as an annexure to the 1 June 2021 letter.

11. On 5 June 2021, the applicant responded to the 1 June 2021 letter, advising that the applicant disagreed that parliamentary privilege applied to any of the allegations in the SOC or that it was necessary to provide any further particulars.

12. On 8 June 2021, the respondent emailed a letter to the applicant enclosing a copy of a proposed interlocutory application seeking summary dismissal of, or to strike out, substantive parts of the SOC (interlocutory application) and on 9 June 2021 provided the interlocutory application and a supporting affidavit to the Court.

13. On 9 June 2021, the Court made orders requiring the respondent to file and serve submissions in support of the interlocutory application by 4.30 pm on 16 June 2021.

14. On 15 June 2021, at or about:

1. 6.30 am, the solicitor for the respondent received draft submissions from counsel for review;

2. 8.38 am, the applicant served an unsealed copy of the ASOC on the respondent by email;

3. 1.27 pm, the applicant served a sealed copy of the ASOC on the respondent by email;

4. 6.06 pm, the respondent emailed the applicant noting that given the ASOC, of which it only had notice from 8.38 am that morning, it would need to reconsider which aspects of the interlocutory application it would press, that it would need to redraft its submissions and stating that it reserved its position with respect to the costs thrown away by the late service of the ASOC.

15. Between 16 June 2021 and 24 June 2021, the parties corresponded in relation to the ASOC.

16. On 25 June 2021, the respondent filed a second interlocutory application (second interlocutory application) and supporting affidavit seeking orders for summary disposal or striking out of substantive parts of the ASOC.

17. The respondent seeks to recover its costs incurred in the period between 6 June 2021 and 15 June 2021 but only for those costs that were incurred for work that was not also relevant to the second interlocutory application.

Relevant statutory provisions and legal principles

18. Section 18(1) of the PID Act provides:

1. In proceedings (including an appeal) in a court in relation to a matter arising under section 14, 15 or 16, the applicant for an order under that section must not be ordered to pay costs incurred by another party to the proceedings, except in accordance with subsection (2).

2. The applicant may be ordered to pay the costs only if:

(a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur the costs.

19. The PID Act does not provide any definition of what might constitute an “unreasonable” act or omission.

20. The Revised Explanatory Memorandum to the Public Interest Disclosure Bill 2013 (Cth) states that the legislative intention was to establish a scheme to investigate allegations of wrongdoing in the Commonwealth public sector and to “provide robust protections to current or former public officials who make qualifying public interest disclosures under the scheme”.

21. The objects of the PID Act are stated in s 6 in these...