Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2]

The High Court of Australia considered an appeal concerning the costs awarded in proceedings between the Board of Bendigo Regional Institute of Technical and Further Education (the appellant) and Mr Barclay and others (the respondents). The dispute arose from earlier litigation concerning the appellant's decision to terminate the employment of the respondents.

The central legal issue before the High Court was whether the Court of Appeal of Victoria had erred in its decision regarding the costs of the proceedings in that court. Specifically, the High Court was required to determine if the Court of Appeal had correctly applied the principles governing the award of costs, particularly in circumstances where a party has been successful on appeal but has also engaged in conduct that might otherwise attract a costs order against them.

The High Court found that the Court of Appeal had made an error in its costs order. The Court of Appeal had ordered that the appellant pay the respondents' costs of the appeal, despite the appellant having been successful in overturning the primary judge's decision. The High Court reasoned that the general rule that costs follow the event should have been applied, and that the Court of Appeal had not identified any exceptional circumstances to justify departing from this rule. The Court of Appeal's approach to the costs of the appeal was therefore found to be erroneous.

Consequently, the High Court ordered that the respondents pay the costs of the appellant in the High Court.