Diana Asmar & Ors (according to the attached Schedule) v The Honourable Anthony Albanese & Ors (according to the attached Schedule) [No 2]

The matter before the Court involved a dispute between Diana Asmar and others, collectively referred to as the applicants, and The Honourable Anthony Albanese and others, referred to as the respondents. The applicants sought to appeal a decision of the Federal Court, but their application for leave to appeal was initially dismissed. They subsequently appealed this decision to the High Court. The High Court allowed the appeal and granted leave to appeal the original Federal Court decision, but ultimately dismissed the appeal on the merits. The central legal issue was the allocation of costs associated with both the application for leave to appeal and the substantive appeal. The applicants argued they should bear only a portion of the costs, while the respondents contended for a full costs order against the applicants.

The Court considered the principle that costs should reflect the outcome of the litigation as a whole and should be apportioned on an issues basis. The Court noted that the applicants were successful in obtaining leave to appeal, which was a significant procedural victory. However, the appeal itself was dismissed on the merits, indicating that the applicants' substantive case did not prevail. Given the mixed outcome, the Court concluded that a costs order apportioned on an issues basis was appropriate. It was determined that the applicants should bear 75% of the respondents' costs, reflecting their partial success.

The High Court ordered that the applicants were to pay 75% of the respondents' costs associated with the application for leave to appeal and the substantive appeal. This decision underscored the importance of considering the overall litigation outcome when determining costs, particularly in cases where the parties have achieved partial success. The allocation of costs was thus reflective of the mixed results in both the application and the substantive appeal stages of the litigation.