Crew v Mitchell

In the case of Crew v Mitchell, the dispute centred on the allocation of costs following a successful application by the applicant for an order that they bear only their own costs. The matter was heard in the Federal Court of Australia. The applicant had been convicted of an offence, leading to the forfeiture of a significant asset which was substantially larger than the profit derived from the offence. The Crown had not taken any formal action to enforce the forfeiture for nearly five years. The applicant's liabilities significantly outweighed their income, and an option to negotiate the costs was briefly mentioned during sentencing but never pursued.

The court was required to determine whether the traditional principle that costs should follow the event should be departed from in this case. The applicant argued that the delay in enforcement by the Crown, coupled with their financial hardship, warranted a different approach to cost allocation. The court considered whether the public interest was served by enforcing the traditional cost allocation rule in circumstances where the applicant had already suffered a significant loss and faced ongoing financial difficulties.

The court ultimately decided that the traditional principle that costs should follow the event should not be departed from in this instance. The court held that the public interest was best served by enforcing the forfeiture as originally determined, despite the applicant's financial hardship. The delay in enforcement by the Crown and the applicant's financial situation were noted, but they were not deemed sufficient grounds to alter the usual cost allocation. Consequently, no order was made as to costs, meaning the applicant was required to bear their own costs as well as those of the respondent.