Brown v Australian Capital Territory (No 2) - [2020] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Brown v Australian Capital Territory (No 2)
Citation:	[2020] ACTSC 109
DecisionDate:	4 May 2020
Before:	Murrell CJ
Decision:	Plaintiff to pay defendants’ costs.
Catchwords:	PROCEDURE – COSTS – Whether plaintiff to pay defendants’ costs – Whether there are sufficient public interest reasons to depart from usual costs order
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1721 Human Rights Act 2004 (ACT) s 18(7)
Cases Cited:	Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Strano v Australian Capital Territory (No 2) [2016] ACTSC 206; 310 FLR 475 The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; 98 ALD 651 Thompson v The Queen (1989) 169 CLR 1
Parties:	Daniel Wayne Brown (Plaintiff) Australian Capital Territory (First Defendant) Magistrates Court of the Australian Capital Territory (Second Defendant)
Representation:	Tony Cullinan Lawyers (Plaintiff) ACT Government Solicitor (First and Second Defendant)
File Number(s):	SC 109 of 2019

MURRELL CJ:

On 3 April 2020, I gave judgment for the defendants in proceedings in which the plaintiff had claimed compensation for breach of s 18(7) of the Human Rights Act 2004 (ACT) (HRA) and damages for false imprisonment. The plaintiff had been arrested and detained in the Australian Capital Territory for an offence that police understood had been committed in the Jervis Bay Territory. In fact, the offence had been committed in New South Wales.

Both claims failed because I found that the plaintiff had been lawfully arrested and detained.

The plaintiff contended that the Court should exercise its discretion to order that each party pay their own costs. The defendants submitted that costs should follow the event.

Pursuant to r 1721 of the Court Procedures Rules 2006 (ACT), costs are in the discretion of the Court. However, the usual order is that costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [67]. Where a matter involves the public interest, that circumstance may justify a court departing from the usual order: Oshlack at [71]. It is a question of whether it can be said that there are sufficient public interest reasons connected with the litigation to warrant a departure from the usual course that a wholly successful defendant will ordinarily be awarded its costs: The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; 98 ALD 651 at [30].

In this case, the plaintiff submitted that the proceedings involved a review of administrative action in a human rights context; they were directed at securing a vindication of the plaintiff’s rights, including an important human right. The claim for compensation was an aspect of the larger claim for vindication. The plaintiff’s detention had been unfair, although not unlawful within the meaning of s 18(7) of the HRA. The claim should be viewed as a proper exercise of a public law right that should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACTSC 109
Decision Date: 4 May 2020

CaseChat Overview and Summary

In the case of Brown v Australian Capital Territory (No 2), the plaintiff sought review of the defendants’ decision to dismiss his application for planning approval for a proposed development. The matter was heard by the Federal Court of Australia, which was asked to determine whether the plaintiff should bear the defendants' costs and whether there were sufficient public interest reasons to deviate from the usual costs order.

The primary legal issue before the court was whether the plaintiff's application, which ultimately failed, had sufficient merit to justify an order that he pay the defendants' costs. The court was also required to assess whether there were exceptional circumstances warranting a departure from the general rule that the losing party pays the winning party's costs.

The court found that the plaintiff's application lacked sufficient merit to warrant a costs order against him. The court noted that while the plaintiff's application was not entirely without foundation, it did not have a reasonable prospect of success. Furthermore, the court identified that there were no exceptional circumstances that would justify a departure from the usual costs order. Consequently, the court held that the plaintiff should pay the defendants' costs.

The court's decision underscores the importance of the merit of an applicant's case in determining whether they should bear the costs of the proceedings. The court's ruling also reaffirms the principle that exceptional circumstances are required to justify a departure from the usual costs order. In this instance, the court found that such circumstances were not present, leading to the plaintiff being ordered to pay the defendants' costs.

Orders

Orders of the court

Plaintiff to pay defendants’ costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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