Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd (No 5)

In this case, the Commissioner of the Australian Federal Police sought the recovery of proceeds of crime from various defendants, including HWCJ GLB Pty Ltd. The case came before the Supreme Court of New South Wales. The defendants contested the claim and the court was required to determine the appropriate costs order. The key legal issues were the principles governing the awarding of costs, the identity of the party against whom the costs should be awarded, and the interpretation of relevant statutory provisions.

The court considered the general principles of costs in civil litigation, emphasising that costs generally follow the event and are compensatory in nature. It examined the various approaches taken by the applicants regarding the costs orders and noted the substantial costs incurred by some applicants. The central question was whether the costs should be awarded against the defendants, the plaintiff, or the Commonwealth. The court also explored the implications of section 323 of the Proceeds of Crime Act 2002 (Cth) and section 98 of the Civil Procedure Act 2005 (NSW) in determining whether the Commissioner qualified as an "unsuccessful party." Furthermore, the court addressed whether the power to award costs could extend to costs in separate but related proceedings, and the interpretation of the term "costs" under the statute. The court ultimately decided that the costs should be awarded as agreed or assessed, rather than imposing a proposed cap.

The court ruled that the costs should be awarded against the defendants and not against the Commonwealth. It found that the Commissioner was not an "unsuccessful party" for the purposes of the statutory provisions. The court also clarified that its power to award costs did not extend to costs in separate but related proceedings, and provided a narrow interpretation of the term "costs" under the statute. The final orders were that the costs should be awarded as agreed or assessed, reflecting the substantial costs incurred by the applicants and the principles of compensatory costs in civil litigation.