Collard v The State of Western Australia [No 4]
[2013] WASC 455 (S)
•2 APRIL 2014
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | COLLARD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2013] WASC 455 (S) |
| CORAM | : PRITCHARD J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN | : DONALD COLLARD |
First-named First Plaintiff
SYLVIA RACHEL COLLARD
Second-named First Plaintiff
GLENYS DALE COLLARD
Second Plaintiff
ELLEN THOMAS
Third Plaintiff
EVA JETTA
Fourth Plaintiff
WESLEY ROHAN COLLARD
Fifth Plaintiff
BEVERLEY ANNE HUMPHRIES
Sixth Plaintiff
DARRYL FREDERICK COLLARD
Seventh Plaintiff
BONNIE COLLARD MILLER
Eighth Plaintiff
[2013] WASC 455 (S)
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
Catchwords:
Costs - Whether circumstances justify departure from the usual order as to costs
- Public interest litigation - Test cases - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
No order as to costs
Category: B
Representation:
Counsel:
| First-named First Plaintiff | : | Mr G M G McIntyre SC & Mr J I Crabtree |
| Second-named First Plaintiff : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| Second Plaintiff Third Plaintiff Fourth Plaintiff Fifth Plaintiff Sixth Plaintiff Seventh Plaintiff Eighth Plaintiff First Defendant | : | Mr G M G McIntyre SC & Mr J I Crabtree |
| : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| : | Mr G M G McIntyre SC & Mr J I Crabtree | |
| : | Mr T C Russell |
Solicitors:
First-named First Plaintiff : Lavan Legal
[2013] WASC 455 (S)
| Second-named First Plaintiff : | Lavan Legal |
| Second Plaintiff | : | Lavan Legal |
| Third Plaintiff | : | Lavan Legal |
| Fourth Plaintiff | : | Lavan Legal |
| Fifth Plaintiff | : | Lavan Legal |
| Sixth Plaintiff | : | Lavan Legal |
| Seventh Plaintiff | : | Lavan Legal |
| Eighth Plaintiff | : | Lavan Legal |
| First Defendant | : | State Solicitor for Western Australia |
Cases referred to in judgment:
A Goninan and Co Ltd v Gill [2001] NSWCA 77; (2001) 51 NSWLR 441
A South-West Forests Defence Foundation (Inc) v Lands and Forrest
Commission (1995) 86 LGERA 382
Attrill v Richmond River Shire Council (1995) 38 NSWLR 545
Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA
8; (2008) 165 FCR 211
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale
[1999] WASCA 57 (S)
Collard v The State of Western Australia (No 4) [2013] WASC 455
Commissioner of Taxation v B and G Plant Hire Pty Ltd (1994) 52 FCR 257
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Hume Coal Pty Limited v Alexander (No 4) [2013] NSWLEC 106
Kenai Lumber Company Inc v LeResche (1982) 646 P2d 215
Lion Laboratories Ltd v Evans [1985] QB 526
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v Director General, Department of Environment and Conservation [2011]
WASCA 57 (S)
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411
Securities Commissioner v Kiwi Co-operative Dairies Ltd [1995] 3 NZLR 26
South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307
State of South Australia v Lampard-Trevorrow [2008] SASC 370
The Wilderness Society Inc v Turnbull, Minister for the Environment and Water
Resources [2007] FCA 1863; (2007) 98 ALD 651
Vriend v Alberta (1996) 141 DLR (4th) 44
[2013] WASC 455 (S)
PRITCHARD J
PRITCHARD J: On 20 December 2013, I delivered reasons for decision in this matter (the reasons for decision),[1] and made orders dismissing the plaintiffs' action and awarding judgment for the State.
[1] Collard v The State of Western Australia (No 4) [2013] WASC 455. These reasons should be read in
2 The State sought an order that the plaintiffs pay its costs of the
action. In addition, counsel for the State also sought an order arising from my reservation of a costs question at the commencement of the trial, when the plaintiffs abandoned their claim against the Community Development Ministerial Body (the CDMB). (On that occasion, I ordered that the plaintiff's action against the CDMB be dismissed and reserved the question of costs arising from the dismissal of that part of the action.)[2]
[2] ts 34 (4 February 2013).
The State also sought an order for a certificate for the cost of a running transcript.
4 The plaintiffs submitted that no order for costs should be made
against them because the action should be characterised as a 'test case' or
as 'public interest litigation'.
I made orders for the filing of further submissions on the question of costs, and for the determination of the question of costs on the papers.
6 Having carefully considered the parties' submissions, I have
concluded that in the special circumstances of this case, the just exercise of my discretion with respect to costs warrants the conclusion that all parties should bear their own costs, and that there should therefore be no order as to costs.
7 In these reasons for decision I discuss the general principles in
relation to the award of costs, particularly the principles which have been developed in 'test cases' and in 'public interest litigation', before explaining why I have concluded that the parties should bear their own costs.
1. General principles in relation to the award of costs
8 The Court has a broad discretion to make orders in relation to the
costs of, and incidental to, a proceeding.[3] However, although broadly stated the discretion is not unqualified and must be exercised judicially in accordance with established principle and factors directly connected with
[2013] WASC 455 (S)
PRITCHARD J
the litigation.[4] The most important factor which guides the exercise of the
costs discretion is the result of the litigation.[5]
The 'usual order' as to costs
[4] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [65] (McHugh J, Brennan CJ
9 Generally speaking, the Court will make an order that the successful
party to an action recover his costs from the unsuccessful party, and this is known as the 'usual order as to costs'. In Oshlack v Richmond River Council[6] McHugh J explained the basis for the rule as follows:
The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resource of the publicly funded system of justice.
[6] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] (McHugh J, Brennan CJ
10 As the State was successful in defending the action the starting point
for considering the proper exercise of discretion with respect to costs is that the State should be able to recover its costs from the plaintiffs. Similarly, as the action against the CDMB was dismissed following the plaintiffs' decision to abandon their action against it, the usual order would be that the CDMB would be entitled to recover its costs to that point in recognition of its success in defending the action.
11 Although the 'usual order as to costs' does not constitute an absolute
rule, it is well established that a court will depart from the usual order as to costs only in 'special circumstances'.[7] The need for 'special
[2013] WASC 455 (S)
PRITCHARD J
circumstances' emphasises that the occasions upon which it will be appropriate for a court to depart from the usual order as to costs will be rare and exceptional.[8]
[8] Roe v Director General, Department of Environment and Conservation [2011] WASCA 57 (S) [13]
12 Among these special circumstances are cases where conduct by the
successful party is considered to disentitle it to the benefit of the exercise of the discretion in its favour, such as where the successful party by its conduct effectively invites the litigation or unnecessarily protracts the proceedings, or succeeds on a point not argued before a lower court, or obtains relief which the unsuccessful party had already offered in settlement of the dispute.[9]
[9] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [69] (McHugh J, Brennan CJ
13 Disentitling conduct by a successful party is not the only basis upon
which a departure from the usual order as to costs may be warranted. In some appellate jurisdictions, particularly the High Court, where an appellant is a large and recurrent corporate or governmental litigant, where the other party to the appeal is not well-positioned to meet adverse costs orders, and where the resolution of the appeal involves a question of general importance to the appellant, it is not uncommon for the grant of leave to appeal to be conditional on the appellant agreeing to pay the respondent's costs of the appeal in any event.[10]
[10] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [137] (Kirby J); see also CSR Ltd v
14 Furthermore, there have been some cases at first instance, and on
appeal, in which no order as to costs has been made in circumstances where the case has been characterised as a 'test case' or as 'public interest litigation'. Some caution must be applied in approaching the exercise of the costs discretion by reference to such characterisations, for five reasons.
15 First, the position remains that there is no special rule which applies
to proceedings characterised as a 'test case' or as involving issues of public interest[11] or which requires that the usual order as to costs will not apply if the subject matter of the litigation is a matter of 'public interest'.[12] Consequently, the characterisation of a case as a 'test case' or as involving
[2013] WASC 455 (S)
PRITCHARD J
[11] Roe v Director General, Department of Environment and Conservation [2011] WASCA 57 (S) [12] (Martin
'public interest litigation' should be understood as shorthand for the identification in that case of a variety of circumstances which are relevant to the proper exercise of the Court's discretion to depart from the usual order as to costs.13
16 Secondly, many of the cases invoking characterisations of 'public
interest litigation', or of a 'test case', have involved the exercise of power pursuant to statutory provisions or rules of court (such as those which apply in relation to the New South Wales Land and Environment Court, for example[14]) which warrant a different approach to the exercise of the discretion as to costs. Similarly, authorities from jurisdictions overseas, where there is a more developed tradition of 'public interest litigation', are of limited assistance[15] given that different context.
[14] See pt 4 r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) which provides that the Court ‘may
[15] See, for example, the authorities discussed in Vriend v Alberta (1996) 141 DLR (4th) 44; and Kenai Lumber
17 Thirdly, it is far from settled what defines a 'test case' or 'public
interest litigation',[16] and the label of itself does not explain what it is about such a case which warrants the exercise of discretion to depart from the usual order as to costs. As McHugh J pointed out in Oshlack[17] much litigation - ranging from prosecutions, to constitutional and administrative law litigation, and many civil actions concerning private rights and duties - concerns the public interest. It is difficult to identify any rational basis which warrants a departure from the usual order as to costs which does not involve a departure in all of these cases,[18] or which will not result in injustice to one of the parties to the litigation.[19]
[16] Cf Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [30] (Gaudron & Gummow JJ).
[17] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [71] (McHugh J, Brennan CJ
[18] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [71] - [75] (McHugh J, Brennan CJ
[19] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [97] (McHugh J, Brennan CJ
18 Fourthly, characterisation as public interest litigation is not
sufficient, on its own, to warrant a departure from the usual order as to costs.[20] That is so in relation to 'test cases' also. To characterise litigation in that way does not deny the relevance of all matters bearing on whether
[2013] WASC 455 (S)
PRITCHARD J
[20] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [54] (McHugh J, Brennan CJ
there exist special circumstances that would justify a departure from the
usual order as to costs.[21][21] Cf Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 [14] (Black CJ & French J).
19 Finally, to focus on whether litigation may be properly characterised
as public interest litigation, or as a test case, may distract from the proper exercise of the discretion as to costs, which requires a consideration of all relevant circumstances, including whether considerations of fairness and policy warrant the conclusion that the usual order as to costs would not represent a just outcome in the circumstances.[22]
[22] Cf Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [30] (Gaudron & Gummow JJ).20 I turn to consider the factors commonly arising in public interest
litigation and in test cases which have been relied upon to warrant a
departure from the usual order as to costs.
Factors in 'public interest litigation' which have been identified as warranting a departure from the usual order as to costs
21 The factors identified as characteristic of 'public interest litigation'
include those where the subject matter of the proceeding involves a matter in the public interest[23] (bearing in mind that the fact that an action is of interest to the public does not mean that it is in the public interest[24]) and that the proceedings have been brought by the plaintiff or applicant to advance that legitimate public interest.[25] As I have already observed, these factors alone will not be sufficient to justify a departure from the usual rule as to costs.[26] Something more is required.
[23] Cf Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [20], [49] (Gaudron &[24] Lion Laboratories Ltd v Evans [1985] QB 526, 553; Blue Wedges Inc v Minister for Environment, Heritage
[25] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [20], [49] (Gaudron &
[26] Roe v Director General, Department of Environment and Conservation [2011] WASCA 57 (S) [12] (Martin
22 Other factors relied upon in the cases include whether the applicant
had an arguable case - that is, that the contentions advanced were not frivolous or lacking in substance or foundation,[27] whether the proceedings involved private gain,[28] whether the proceedings have contributed to the
[2013] WASC 455 (S)
PRITCHARD J
[27] Roe v Director General, Department of Environment and Conservation [2011] WASCA 57 (S) [21] (Martin
[28] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [20], [49] (Gaudron & Gummow
clarification and proper understanding of the law,[29] or raised novel questions of general importance,[30] or whether the proceedings will have implications for persons other than the individual litigants or will benefit the public or a large section of the public.[31]
[29] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [20], [49] (Gaudron &
[30] Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [12]; Blue Wedges Inc v
[31] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [20], [49] (Gaudron &
23 On the other hand, the fact that the litigation is brought against the
State, or an agency of the State, does not mean that the litigation can be characterised as public interest litigation, or that the nature of the defendant, of itself, is a reason for departing from the usual rule as to costs.[32]
[32] Cf South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307, 311 (Tadgell J, Coldrey J
24 In those cases where a departure from the usual order as to costs has
been thought warranted on the basis that the case is a 'test case,' there has been little elaboration on what that label signifies. The fact that a case raises for the first time the meaning or operation of a legislative provision, or the application of the legal principles applicable to a novel fact situation, cannot be sufficient to characterise that case as a 'test case' for present purposes. Such cases are hardly unusual, and as a matter of policy, it is difficult to see why novelty would justify a departure from the usual order as to costs.
25 As in the case of public interest litigation, something more is
required before the fact that a case is described as a test case will justify a departure from the usual order. Most often, that something extra will be the fact that the case involves a wider legal importance, or significance, than that which it has to the individual litigants.[33] That importance or significance will ordinarily derive from the likely application of the principles established in the case to other similar cases,[34] or from the fact that the case involves a question of construction of a statutory provision with a wide significance,[35] or about which there have been differing views, or that the case has been brought to ascertain the correctness of a
[2013] WASC 455 (S)
PRITCHARD J
[33] A Goninan and Co Ltd v Gill [2001] NSWCA 77; (2001) 51 NSWLR 441, 460 (Heydon JA, Sheller & Giles
[34] Cf State of South Australia v Lampard-Trevorrow [2008] SASC 370 [36] (White J).
[35] Cf Commissioner of Taxation v B and G Plant Hire Pty Ltd (1994) 52 FCR 257, 270 (Gummow J);
particular line of authority.36 The range of factors which justify a departure from the usual rule as to costs in the case of public interest litigation may also be relevant in the 'test case' context.
26 Counsel for the State submitted that in a number of the cases
described as test cases, the litigation was commenced by a governmental or large commercial entity to pursue an issue of importance to it, and the unsuccessful defendant was 'simply unfortunate to have been chosen as the respondent in the litigious vehicle in which the larger interests were being pursued'.[37] However, in none of those authorities is any rule established that the 'test case' characterisation applies only to litigation brought by governmental or large commercial entities. The decision of the New South Wales Court of Appeal in Attrill v Richmond River Shire Council[38] was not such a case, yet the fact that that litigation had the attributes of a test case contributed to the Court's conclusion that a departure from the usual order as to costs was warranted.
2. Why a departure from the usual order as to costs is warranted in this case
[37] Defendant's submissions [10].[38] Attrill v Richmond River Shire Council (1995) 38 NSWLR 545.27 Counsel for the State advanced a number of reasons why there
should be no departure from the usual order as to costs in this case. Despite the persuasive force in some of those submissions, after taking all of the circumstances into account, I have formed the view that the special circumstances of this case warrant a departure from the usual order as to costs, on the basis that this was a test case. I have reached that view for four reasons.
28 First, this case sought to establish, for the first time in Western
Australia, the existence of fiduciary duties arising from the relationship between the State and aboriginal people who were made wards of the State, and their parents. Counsel for the plaintiffs submitted that this case was a test case because it involved the clarification of the law in Western Australia 'as it relates to members of the State's Stolen Generations.'[39] However, as I observed in the reasons for decision,[40] this case did not concern the removal of aboriginal people pursuant to the policy of assimilation which has been referred to as resulting in 'the Stolen
[39] Plaintiffs' submissions [4].[40] Collard v The State of Western Australia (No 4) [2013] WASC 455 [13] - [14].
[2013] WASC 455 (S)
PRITCHARD J
Generation'. Instead, in my view, this case had the attributes of a test case because it raised a number of novel issues which went well beyond the application of established principles, and which were issues of general importance. These issues included:
the plaintiffs' claims that a fiduciary relationship was founded on
the State's assumption of a responsibility to act in the best interests of the aboriginal people of this State following European settlement;
the characterisation of various duties said to be owed by the State to the Children (in essence, to act in the best interests of the Children) as fiduciary duties;
the claim that the State owed fiduciary duties to Don and Sylvia by
virtue of the Children having been made wards;
the claim of the existence of secondary fiduciary duties in the form of a continuing obligation to obtain legal advice for the plaintiffs, and of a duty to take reasonable steps to avoid the occurrence of further loss to the plaintiffs, which duties were said to survive the expiration of the Children's wardships;
the principles applicable to determining whether the State breached
the alleged fiduciary duties; the quantification of damages for a breach of the alleged fiduciary
duties; and whether the Crown Suits Act 1947 (WA) applied to the plaintiffs'
claims of breach of fiduciary duties said to be owed by the State.
29 Counsel for the State acknowledged that some of these issues may be
regarded as being of general importance. However, they submitted that much of the case was concerned with identifying the factual circumstances of the particular plaintiffs, and that the legal conclusions which followed from those factual findings would not be of general application to other cases, so that the case could not be regarded as a test case. I am unable to accept that submission. The outcome of every case will depend upon its particular facts. It was the advancement of the novel legal principles with which this case was concerned, and the wider significance of those principles, that gave it the character of a test case. Had the plaintiffs been successful in establishing the existence of those
[2013] WASC 455 (S)
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legal principles, the application of those principles in other cases would
inevitably have depended upon the particular facts of those other cases.30 Secondly, the limited evidence before the Court tends to support the
conclusion that the case was brought on the basis that the questions resolved by this action would have significance for other possible claims by aboriginal people who were made wards in circumstances not dissimilar from those applicable to the plaintiffs. It is true, as counsel for the State pointed out, that the plaintiffs' claim was not run as a representative action. That was not surprising, given the nature of the claim, and its dependence in a number of respects on the individual circumstances of the plaintiffs.
31 However, the evidence led at the trial established that during the
1990s, the solicitors from the Aboriginal Legal Service (ALS) who were acting for the plaintiffs were also acting on behalf of other aboriginal people who had been removed from their families until the 1960s.41 Legal advice was sought by the ALS at various times in relation to the causes of action that might be pursued by aboriginal people who, as children, had been removed from their families, and by aboriginal people whose children were taken from their care.[42] Legal advice was also sought by the ALS to identify those clients of the ALS whose cases might provide a suitable basis for the conduct of a test case.[43] The ALS clearly sought to pursue a test case to clarify the law in relation to the claims of these persons, including the plaintiffs. It pursued funding for that purpose.[44] Initially, 17 possible plaintiffs, including Don, Sylvia, Glenys, Eva and Ellen, were identified as possible plaintiffs.[45] Glenys expressly consented to the use of her case as a test case.[46] Following the receipt of some further funding, work was able to continue on the preparation of test cases[47] and counsel was retained to advise on the suitability of particular plaintiffs in a test case,[48] resulting in the preparation of five draft statements of claim.[49]
[42] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1057].[43] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1060], [1063].[44] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1059].[45] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1063].[46] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1060].[47] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1069].[48] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1069].[49] Collard v The State of Western Australia (No 4) [2013] WASC 455 [1071].32 Although there was a lengthy delay between this activity in
anticipation of the commencement of a 'test case' and the commencement of the present action, there was nothing to suggest that when this action
[2013] WASC 455 (S)
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was commenced it was not pursued by the plaintiffs, assisted by the ALS, on the basis that it was a test case which would clarify the application of the law for other aboriginal people with similar claims. Furthermore, the different experiences of the nine plaintiffs in this case permitted the exploration of the legal principles in a range of different factual contexts. In these respects, the action had a legal importance or significance which was wider than that which it had to the individual plaintiffs.
33 Thirdly, I have taken into account the strength of the plaintiffs' case
in assessing whether a departure from the usual order as to costs is warranted. Counsel for the State submitted that there was a considerable body of authority against the plaintiffs on a number of aspects of their claim. I accept that in some respects, success for the plaintiffs on some aspects of their claim required the Court to depart from existing binding, or highly persuasive, authority. In many other respects, however, the plaintiffs' claim was truly novel. In both senses, the plaintiffs' claim was one which deliberately sought to develop the law in new directions. But in my view it cannot be said that the plaintiffs' case was so lacking in merit as to undermine the claim that the just outcome would be a departure from the usual order as to costs.
34 Fourthly, the plaintiffs sought both declaratory relief, and damages.
It is true, as counsel for the State submitted, that the claim for damages was of a significant quantum, and that exemplary damages were also sought. However, I am unable to accept their submission that 'the plaintiffs' closing submissions focused on the award of damages' and that for that reason, 'it cannot be concluded that the case was primarily brought to establish a point or principle of law'.[50] It was hardly surprising that during his closing submissions, counsel for the plaintiffs addressed some submissions to the question of damages, and to how damages for a breach of the alleged fiduciary duty should be assessed. That was one of the novel aspects of the plaintiffs' claim and it was necessary for the plaintiffs' counsel to spend time developing submissions on that issue.
[50] Defendant's submissions [15].35 Having regard to all of these circumstances, I am satisfied that this is
one of those rare and exceptional cases where the justice of the case warrants a departure from the usual order as to costs. In this case, there should be no order as to costs, so that the parties will bear their own costs.
36 In view of that conclusion it is unnecessary to deal with the State's
application for a certificate for a running transcript.
conjunction with those earlier reasons for decision. The same abbreviations have been used.
agreeing), see also [22] (Gaudron & Gummow JJ).
agreeing).
agreeing).
(Martin CJ & Murphy JA); Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229; The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; (2007) 98 ALD 651 [29] (Marshall J).
(Martin CJ & Murphy JA); see also A South-West Forests Defence Foundation (Inc) v Lands and Forrest
Commission (1995) 86 LGERA 382, 384; Buddhist Society of Western Australia (Inc) v Shire of
Serpentine-Jarrahdale [1999] WASCA 57 (S) [11].
agreeing).
Eddy [2005] HCA 64; (2005) 226 CLR 1 [81] (Gleeson CJ, Gummow & Heydon JJ).
CJ & Murphy JA) and see the cases discussed therein.
13 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 [14] (Black CJ & French J).
decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is
satisfied that the proceedings have been brought in the public interest’. See also Hume Coal Pty Limited v
Alexander (No 4) [2013] NSWLEC 106 [25] - [32] for a recent discussion of the principles applied in the exercise of that discretion. See also the statutory context discussed in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [45] (Gaudron & Gummow JJ).
Company Inc v LeResche (1982) 646 P2d 215.
agreeing).
agreeing).
agreeing).
agreeing).
Gummow JJ), [136] (Kirby J).
and the Arts [2008] FCA 8; (2008) 165 FCR 211 [73] (Heerey J).
Gummow JJ), [136] (Kirby J); Roe v Director General, Department of Environment and Conservation [2011]
WASCA 57 (S) [15] (Martin CJ & Murphy JA).
CJ & Murphy JA).
CJ & Murphy JA).
JJ), [136] (Kirby J); Roe v Director General, Department of Environment and Conservation [2011] WASCA
57 (S) [22] - [23] (Martin CJ & Murphy JA).
Gummow JJ), [136] (Kirby J); Roe v Director General, Department of Environment and Conservation [2011]
WASCA 57 (S) [16] (Martin CJ & Murphy JA); Attrill v Richmond River Shire Council (1995) 38 NSWLR
545, 556 (Kirby P, Clarke JA agreeing).
Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 [73] (Heerey J).
Gummow JJ); Attrill and Ors v Richmond River Shire Council (1995) 38 NSWLR 545, 556 (Kirby P, Clarke
JA agreeing).
agreeing).
JJA agreeing).
Securities Commissioner v Kiwi Co-operative Dairies Ltd [1995] 3 NZLR 26, 36 (Blanchard J, for the Court).
36 A Goninan and Co Ltd v Gill [2001] NSWCA 77; (2001) 51 NSWLR 441, 459 - 460 (Heydon JA, Sheller &
Giles JJA agreeing); Attrill v Richmond River Shire Council (1995) 38 NSWLR 545, 556 (Kirby P, Clarke JA
agreeing).
41 Collard v The State of Western Australia (No 4) [2013] WASC 455 [1056].
0
0
2