Honora Mary Pride v Ronald Patrick Hassell

[1984] FCA 452

Re: HONORA MARY PRIDE
And: ROLAND PATRICK HASSELL; DESMOND MATTHEW TEHAN and STANLEY McLEISH HARRIS
W.A. No. G 74 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Northrop J.
Morling J.

CATCHWORDS

Practice and Procedures - Costs - Appeal discontinued - Legislation resolving question against appellant - Legislation enacted after filing of Notice of Appeal - Each party to pay own costs.

Repatriation Legislation Amendment Act 1984.

HEARING

PERTH

#DATE 11:12:1984

ORDER

1. The appellant be given leave to discontinue the appeal.

2. Each party pay his own costs of the appeal.

JUDGE1

In this matter the appellant, Honora Mary Pride, has appealed against two sets of orders made by Mr. Justice Toohey. The first concerned an application for a writ of mandamus against Mr. Hassell, Mr. Tehan and Mr. Harris, members of the Repatriation Review Tribunal. Mr. Justice Toohey in relation to that application dismissed the application for a writ of mandamus, gave the parties liberty to file and serve within 21 days written submissions in support of or opposition to the application for a writ of prohibition, and adjourned the application with liberty to apply generally. He made no order as to costs.

1. Subsequently an application for a writ of prohibition was brought against the same three, members of the Repatriation Review Tribunal. Mr. Justice Toohey dismissed this application for a writ of prohibition, and at the request of counsel for the appellant reserved the costs.

2. The appeal to us is against the order dismissing the application for a writ of mandamus, and also the order dismissing the application for a writ of prohibition. There is also a suggestion that we should be seized of the costs below. So far as the costs below are concerned, I am of opinion that we should not interfere in that matter. In relation to reserved costs the parties are at liberty to return to the trial judge for an order in respect of those costs. So far as the costs of the appeal are concerned, this is the only issue remaining between the parties because the appellant has decided to discontinue the appeal.

3. The appellant has not filed a notice of discontinuance. Where that occurs, under our rules it is automatic under the rules that the person discontinuing pays the costs of the other side unless the Court otherwise orders. However, the appellant has allowed the appeal to be listed, but now seeks only to make submissions as to costs before discontinuing. He has argued that, although the appellant is the party discontinuing, it should have an order for costs against the second respondent, the Commonwealth of Australia, who was joined and appeared below and on this appeal.

4. It is unusual for the Court in the exercise of the very wide discretion which it has in relation to costs to order costs against a successful party. However, it sometimes does so. Some cases are set forth, for example, in Ritter v. Godfrey (1920) 2 KB 47 in the judgment of Atkin LJ. at pages 60 and 61. His Lordship cites three classes of case which would be exceptions where it might be done. Each of them involves some form of questionable or wrongful conduct on the part of the party against whom the costs were to be awarded.

5. Nothing of that kind appears in the present case. Although costs are sought against the Commonwealth, there is no suggestion that in any way they have acted wrongly. However, what has occurred is that the parliament, the House of Representatives, Senate and the Queen, have passed a statute, the Repatriation Legislation Amendment Act 1984, with provision that it shall come into operation on 1 January 1985. It was assented to on 9 October 1984. This has produced a set of circumstances in which it has become impossible for the appellant usefully to continue with the argument of the appeal. I may add that we would be unwilling to encourage them to argue the appeal in full simply in order to determine liability for costs.

6. In these circumstances, it appears to me that although the Commonwealth, as I say, is not guilty of any wrong conduct, it has produced the situation which has now arisen. Both parties have left it to a late stage to ascertain the consequences of the new legislation and to determine whether it has rendered the argument of the appeal virtually moot.

7. In my opinion, the fairest result would be for this Court to order that each party pays its own costs. I would so order.

JUDGE2

The facts giving rise to the present application have been outlined by the learned Chief Judge. In my opinion, under section 43 of the Federal Court of Australia Act 1976, the Court has an unfettered discretion as to any orders it makes for costs, and in applying that discretion I adopt the view expressed by the High Court in Milne v. Attorney-General for the State of Tasmania (1956) 95 CLR 460 at p.477 where the Court expressed the general rule as follows:

"It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary."

1. The judgment then goes on to say that in that case there was no reason shown to the contrary.
   

2. In the present case, in my opinion, nothing
   that has been said on behalf of the appellant has shown any reason to the contrary why the general principle should not be applied. This was a case where, at the time of the hearing before the Federal Court constituted by a single judge, the existence of a bill before parliament was known, a bill containing a provision which gave power to the proposed new Board to compel an applicant for a pension or benefit to appear before the relevant Board. At the present time the appellant seeks leave to discontinue, which, in the absence of the filing of a notice of discontinuance, I would treat as seeking the dismissal of the appeal. In my opinion, the existence of an Act of Parliament coming into operation after the trial, but not taking effect until later, is not sufficient reason to depart from the normal principle. I would order that the appellant pay the respondent's costs of the appeal. As far as the costs reserved by the trial judge are concerned, they should be dealt with pursuant to the leave reserved by that judge.

JUDGE3

I agree with the reasons given by the Chief Judge and with the order he proposes.