Brown, Michael v Members of the Classification Review Board of the Office of Film & Literature Classification

[1997] FCA 487

CATCHWORDS

Practice and procedure - costs - factors relevant to exercise of Court’s discretion - whether Court should depart from usual rule that costs follow the event - whether public interest in determination of aspects of the construction and administration of national censorship legislation warrant departure from the usual rule.

Legislation

Federal Court of Australia Act 1976 (Cth) s.43

Cases

Re  Wilcox; Ex parte Venture Industries Pty Ltd and Ors (1996) 141 ALR 727
Woodlands v Permanent Trustee (1995) 58 FCR 139
Council of Municipality of Botany v Secretary Department of the Arts (1992) 34 FCR 412
Minister for Community Services and Health v Dibo Pty Ltd (1992) 38 FCR 292
Gray v Minister for Immigration (1992) 38 FCR 351
Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166

VG 507/96 MICHAEL BROWN, MELITA BERNDT, BEN ROSS, VALENTINA SRPCANSKA v THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION

COURT        MERKEL J
PLACE        MELBOURNE
DATE     6 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION  No. VG 507 of 1996

BETWEEN:

MICHAEL BROWN
  MELITA BERNDT
  BEN ROSS
  VALENTINA SRPCANSKA

Applicants

- and -

THE MEMBERS OF THE CLASSIFICATION REVIEW
   BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION

Respondents

COURT:MERKEL J

PLACE:MELBOURNE

DATE:             6 JUNE 1997

REASONS FOR JUDGMENT

The applicants were the editors of Rabelais, a student journal in which an article entitled “The Art of Shoplifting” was published. They applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) for review of the decision of the Classification Review Board refusing classification for the Rabelais publication which contained the article.

The respondents, who are the members of the Board, opposed the application for review.

In Reasons for Judgment delivered today, I dismissed the application.  The respondents’ application for costs was opposed by the applicants.

Although the applicants conceded that costs follow the event they contended that, in the special circumstances of the present case, it was appropriate for no order to be made as to costs.

Section 43 of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction on the Court or a Judge to award costs in all proceedings before the Court, other than proceedings in respect of which any Act provides that costs shall not be ordered. Section 43(2) provides:

Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

As no special provision is made for costs in the ADJR Act, the costs in the present matter are in the discretion of the Court or a Judge. The usual rule that costs follow the event has been settled practice in the courts of England and Australia over a very long period of time. However the courts can depart, and have departed, from the usual rule if special or unusual circumstances warrant the departure.

In discussing whether there should be a departure from the usual rule of awarding party and party costs by making an order for indemnity costs for a successful applicant, the majority of the Full Court (Cooper and Merkel JJ) said in Re  Wilcox; Ex parte Venture Industries Pty Ltd and Ors (1996) 141 ALR 727 at 732-3 that the principles generally applied in the Court were:

(1)Section 43 of the FCA confers an absolute and unfettered discretion on the court to make orders as to costs but the discretion must be exercised judicially.

(2)In order to exercise the discretion judicially the following principles have been accepted by the court as applicable:

(a)the court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the court in departing from the usual course;

(b)the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course;

......

Analogous principles have been applied by the Court to justify a departure from the usual rule that costs follow the event in certain cases involving review of administrative action:  see Costs Orders on Review of Administrative Action Peter Bayne (1994) 68 ALR 816 at 817-9.

The fact that proceedings were in the public interest or that there is a substantial public interest in the determination of the claims can be a relevant, but not necessarily decisive, factor in departing from the usual rule:  see Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 146-8 per Wilcox J. and the cases referred to in 68 ALJ 817-8 cf: Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415-7 per Gummow J.

On some occasions special considerations have been taken into account as a reason for departing from the usual rule in cases involving government.  For example:

·     the litigation was of assistance to the course of the government administration and involved general principles of administrative law that were very much a matter of concern to the government:  see Minister for Community Services and Health v Dibo Pty Ltd (1992) 38 FCR 292 at 294 per Burchett J with Hill and O’Connor JJ concurring;

·     the nature of the matter and the importance to government of having the legal position raised by it clarified:  see Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 at 355 per Burchett J

The fact that the matter involves a challenge to government action under the ADJR Act, of itself, is not a special consideration. In judicial review situations it is accepted that costs follow the event unless there are special circumstances that make it proper for an exception to be made: see Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 170-1 per Burchett J and Council of the Municipality of Botany at 416 per Gummow J.

In my view there are several special features of the present case which, cumulatively and in the interests of justice, warrant a departure from the usual rule.  They are:

1. The matter is one of importance to the administration of aspects of the uniform censorship scheme established pursuant to the co-operation agreement between the Commonwealth, the States and the Territories on 28 November 1995 and aspects of complementary legislation enacted by the Commonwealth and State governments.

2. The matter has clarified the position in relation to important aspects of the National Classification Code under the Classification (Publications, Films and Computer Games) Act 1995 (Cth).

3. The initial classification which gave rise to the determination of the Classification Review Board, the subject of the present matter, was not applied for by the applicants but arose as a result of an application to the Chief Censor by the Retail Traders Association of Victoria, which is not a party to the matter before the Court.

4. The applicants have been charged with offences in relation to their role in editing the Rabelais journal. If ultimately they were successful in challenging the Board’s refusal to classify the article, that would afford the applicants with  a complete defence to the charges.  Accordingly, although the proceeding in the Court is entirely civil in character, it has the highly unusual feature of being able to give rise to a complete defence to the charges.

5. The applicants have acted reasonably in their prosecution and conduct of the proceeding which has had to resolve issues under National Classification Code which have not received prior consideration by the Court.

For these reasons it is appropriate to make no order as to costs.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel.

Associate:

Date:

Heard:         6 June 1997
Place:         Melbourne
Judgment:      6 June 1997

Appearances:    Mr I Freckleton, instructed by Western Suburbs                 Legal Service Incorporated, appeared for the                   applicants.
               Mr P Hanks, instructed by the Australian    Government Solicitor, appeared for the   respondents.