Bahonko v Nurses Board of Victoria (No 5)

[2007] FCA 1591

FEDERAL COURT OF AUSTRALIA

Bahonko v Nurses Board of Victoria (No 5) [2007] FCA 1591

COSTS — discretion conferred upon court by s 43(2) of the Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation — ordinary rule is that costs follow the event

Federal Court of Australia Act 1976 (Cth), s 43(2)

Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 cited
Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 cited
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136 cited
Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 cited
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 cited

STANISLAWA BAHONKO v NURSES BOARD OF VICTORIA AND FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE
VID 855 OF 2006

MIDDLETON J
18 OCTOBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 855 OF 2006

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

NURSES BOARD OF VICTORIA
First Respondent

FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	18 OCTOBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant pay the first respondent’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 855 OF 2006

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

NURSES BOARD OF VICTORIA
First Respondent

FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE
Second Respondent

JUDGE:	MIDDLETON J
DATE:	18 OCTOBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 14 September 2007 the Court ordered that the applicant’s motions, notices of which were dated 22 September 2006, 3 October 2006, 31 October 2006, 27 February 2007 and 28 May 2007, be dismissed and that the application for leave to file the application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) out of time be refused.

2. I directed the parties to file submissions as to costs.

3. The first respondent sought that the applicant pay the first respondent’s costs of the proceeding, other than those costs dealt with in the orders made on 5 April 2007.  The second respondent sought no order as to costs.  The applicant sought orders as to costs against both respondents, and also Russell Kennedy.

4. Other than those matters already dealt with on 5 April 2007, the respondents have been successful in resisting the application and the applicant’s various notices of motion brought in this proceeding: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449. The Court has already made costs orders in respect of the issues decided in the applicant’s favour on 5 April 2007.

5. The first respondent submits that the usual rule that costs should follow the event in respect of the matters decided on 14 September 2007 should be applied.

6. The discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) is a wide and comprehensive one – attempts to narrow the discretion have not been successful: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496; Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 at [5].

7. The discretion is not unfettered – it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485.

8. Pursuant to my direction, the applicant filed written submissions as to costs.  In essence, many of the claims made in these submissions were a reiteration of the claims made in the proceedings before me, which claims were unsuccessful.  I need not rehearse all the allegations asserted in the written submissions of the applicant.

9. I find that the applicant has not shown anything in the behaviour or actions of the respondents or Russell Kennedy in connection with these proceedings which would be a basis for departing from the usual rule that the applicant (as the unsuccessful party) pay the costs of the first respondent (a successful party).  I find no basis for ordering that either the respondent or Russell Kennedy pay the costs of the applicant, and refuse the applicant’s application for costs.

10. Accordingly, I will order that the applicant pay the first respondent’s costs of the proceeding.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        18 October 2007

Counsel for the Applicant:	Self-represented
Counsel for the First Respondent:	T Cordoner
Solicitor for the First Respondent:	Russell Kennedy
Counsel for the Second Respondent:	L De Ferrari
Solicitor for the Second Respondent:	Victorian Government Solicitor’s Office
Date of Hearing:	14 September 2007
Date of Judgment:	18 October 2007