Jan v Health Care Complaints Commission (No 2)

The case involved Jan, the applicant, and the Health Care Complaints Commission, the respondent. Jan appealed against the decision of the NCAT, which had ordered her to pay costs to the Commission. The dispute centred on the assessment of costs following an unsuccessful application for a review of a decision made by the Commission. Jan had succeeded on one of the 16 grounds she had argued, but the other grounds were numerous and some were close to unarguable. The court was required to determine whether costs should follow the event, considering the nature of the successful ground and the difficulties associated with the other grounds.

The court had to weigh the principle that costs should follow the event against the overall circumstances of the case. The successful ground on which Jan prevailed had been consistently maintained throughout the proceedings, but the other grounds presented significant challenges. Some of these grounds were so weak that they were almost unarguable. The court needed to balance the importance of the successful ground with the overall impracticality and unfairness of making Jan bear the costs of such a complex and largely unsuccessful appeal.

In the end, the court decided not to make any order as to costs. This decision was based on the recognition that while Jan succeeded on one ground, the numerous and largely unmeritorious nature of the other grounds made it unjust for her to bear the costs of the appeal. The court found that the principle of costs following the event did not apply in these circumstances, given the significant imbalance between the merits of the successful ground and the other, less tenable arguments.