CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA (No 2)

CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd, the plaintiffs, were engaged in litigation against the State of South Australia, the defendant, in the Federal Court of Australia. The dispute centered around issues of costs and the general principle that costs follow the event, as well as specific instances where particular circumstances apply. The plaintiffs sought an order for the defendant to pay their costs, arguing that they had been successful on all contested issues at trial and had not engaged in any conduct that would disqualify them from such an award. The defendant contested this application, asserting that the matter should be deferred until the resolution of arbitral proceedings between the parties.

The court had to determine whether the costs incurred by the plaintiffs should be awarded to them, and if so, on what basis. The plaintiffs argued that the defendant's claims of public interest immunity and parliamentary privilege were invalid and that these claims were not the subject of agitation before the arbitrator. Therefore, the court should not defer the decision on costs until the arbitral proceedings were resolved. The defendant, on the other hand, argued that the costs should be deferred until the arbitral proceedings were concluded, as the subject matters of the two proceedings were factually interconnected.

In its decision, the court found that the plaintiffs had succeeded on all contested issues at trial and had not engaged in any disentitling conduct. The court agreed with the plaintiffs that the issue of costs should not be deferred until the arbitral proceedings were concluded, as the present dispute was a contest of a discrete issue concerning the validity of the defendant's claims to public interest immunity and parliamentary privilege. These claims were not the subject of agitation before the arbitrator. Consequently, the court ruled that the plaintiffs were entitled to their costs on a party-party basis, to be taxed if the parties were unable to agree on the amount.