Department of Human Services v RA (No 2)

In this case, the Department of Human Services sought to recover payments made to RA, RB, and TH, under a government assistance program. The dispute was heard in the Federal Circuit and Family Court of Australia. The central issue before the court was whether the Department could recover payments made to the respondents, and if so, to what extent. The respondents contended that the Department had not provided sufficient evidence to justify the recovery of the payments.

The court considered the relative strength of the claims and the engagement of senior counsel by the Department. The court noted that the engagement of senior counsel by the Department was not in itself a basis for awarding costs against the respondents. However, the court held that the respondents were entitled to costs on the basis that the Department's claims were not as strong as they had initially appeared. The court found that the Department's case was not as strong as it had initially appeared, and that the respondents' case was relatively stronger. As a result, the court held that the respondents were entitled to costs on an indemnity basis, including counsel's fees calculated on the basis of fees properly payable to junior counsel.

The court ordered that the Department of Human Services pay the costs of RA, RB, and TH of these proceedings as agreed or assessed, such costs to include counsel's fees calculated on the basis of fees properly payable to junior counsel. The court's decision highlights the importance of considering the relative strength of the claims when deciding on costs in litigation.