Brittain v The Commonwealth of Australia (No 2)

The appeal concerned the costs of a first trial in a dispute between Brittain (the appellant) and the Commonwealth of Australia (the respondent). The Court of Appeal of New South Wales was required to determine whether there were special circumstances justifying a departure from the general rule that the costs of a first trial should abide the event of a second trial, particularly where the respondent was found to have caused a miscarriage of the first trial.

The central legal issue before the court was whether the respondent's conduct warranted an order for the appellant to recover the costs of the first trial on an indemnity basis, rather than the usual order that costs follow the event of the second trial. This required the court to consider the nature of the respondent's actions and their impact on the fairness and efficiency of the initial proceedings.

The court reasoned that the respondent's actions had indeed caused a miscarriage of the first trial, thereby creating special circumstances that justified a departure from the ordinary rule. Applying the principles governing costs orders in such situations, the court concluded that it was appropriate to order the respondent to pay the appellant's costs of the first trial on an indemnity basis. Consequently, the court ordered that the respondent pay the appellant's costs of the first trial on an indemnity basis.