H.E.S.T Australia Ltd v Attorney-General (Qld) & Anor; Mercy Super Pty Ltd v Attorney-General (Qld) & Anor (No 2)

In the case of H.E.S.T Australia Ltd v Attorney-General (Qld) & Anor; Mercy Super Pty Ltd v Attorney-General (Qld) & Anor (No 2), the applicants, who are trustees of two superannuation funds, sought declarations and assent from the court regarding the legality of proposed successor fund transfers. The Attorneys-General for Queensland and Victoria were joined to the proceedings as they were deemed proper and necessary parties. The central issue before the court was whether the costs incurred by the Attorneys-General in their participation in the proceedings should be paid on the indemnity basis, with the costs being met from the assets of the applicants’ funds.

The court examined the principles governing indemnity costs in the context of civil proceedings, particularly focusing on the nature of the claims and the status of the parties involved. It was noted that indemnity costs are typically awarded when a party has acted in the public interest or in a manner that benefits the party seeking costs. The court also considered the precedents set by similar cases and the statutory provisions that allow for costs to be paid out of specific funds in certain circumstances. Ultimately, the court found that the Attorneys-General's involvement was justified and in the public interest, warranting the award of indemnity costs.

The court ruled that the costs of the Attorneys-General in both proceedings should be paid on the indemnity basis, with the costs to be reimbursed out of the assets of the respective superannuation funds. This decision was based on the public interest nature of the proceedings and the role of the Attorneys-General as proper and necessary parties. The orders made by the court specified that the costs in each proceeding were to be met from the assets of the HESTA Fund and the Mercy Super Fund respectively.