Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission

In the matter of Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission, the applicant sought maximum costs pursuant to r 40.51 of the Federal Court Rules 2011 (Cth). The applicant, Australians for Indigenous Constitutional Recognition Ltd, had applied to the Australian Charities and Not-for-profits Commission (ACNC) for registration as a public benevolent institution (PBI). The ACNC refused this registration but accepted the applicant’s registration with other subtypes. The applicant objected to this decision under the ACNC Act, which was subsequently disallowed. The applicant chose to appeal this objection decision to the Federal Court rather than seek review in the Administrative Appeals Tribunal, where it would have been exposed to the possibility of an adverse costs order.

The legal issues before the court included whether the Court should grant a protective costs order to the applicant and whether the Court’s consideration of the appeal would provide guidance on the proper construction of the phrase "public benevolent institution" and the characterisation of an entity’s activities in determining if an entity is a PBI. The Court found that the meaning of "public benevolent institution" and the characterisation of activities were not as uncertain as the applicant suggested. The Court cited previous cases, including Ambulance Service of NSW v Deputy Commissioner of Taxation and Australian Council of Social Service Inc v Commissioner of Pay-roll Tax, to support its findings.

The Court dismissed the interlocutory application for maximum costs. It reasoned that the discretionary provision under r 40.51(1) is to be exercised judicially and that the nature of the proceedings, where the applicant had chosen to appeal instead of seeking review in the Administrative Appeals Tribunal, did not warrant a protective costs order. The Court also noted that the applicant did not adequately address the issue of choosing to appeal instead of seeking review in its written submissions in chief. The Court ordered that the interlocutory application be dismissed and scheduled a case management hearing for 20 May 2021.

The Court also noted that there was no order as to costs in respect of the interlocutory application, as per the parties’ agreement that each party would bear its own costs.