Lusk v Commonwealth Ombudsman

[2019] FCCA 1640

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUSK v COMMONWEALTH OMBUDSMAN

[2019] FCCA 1640

Catchwords:

PRACTICE & PROCEDURE – Costs – whether special costs order warranted for proceeding said to have been brought in the public interest.

Cases cited:

Lusk v Tong, Delegate of the Commonwealth Ombudsman [2019] FCCA 1335

Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060

Applicant:

Michael Andrew Lusk

Respondent:

Commonwealth Ombudsman

File Number:

SYG 1354 of 2017

Judgment of:

Judge Cameron

Hearing date:

22 May 2019

Date of Last Submission:

22 May 2019

Delivered at:

Sydney

Delivered on:

22 May 2019

REPRESENTATION

The Applicant in person

Solicitor for the Respondent:

Ms H Dejean, Australian Government Solicitor

ORDERS

(1)     The applicant pay the respondent’s costs to be assessed in default of agreement.

1. FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 1354 of 2017

Michael Andrew Lusk

Applicant

And

Commonwealth Ombudsman

Respondent

REASONS FOR JUDGMENT

(As Corrected)

1.      The application in this matter was dismissed and the Commonwealth Ombudsman, who was substituted as the respondent, sought his costs.  Mr Lusk opposed the application on the basis that although he had been unsuccessful, he had brought the proceeding in the public interest and so ought not be ordered to pay the Ombudsman’s costs.

2.      While I appreciate Mr Lusk’s concerns about the issue of the fluoridation of reticulated drinking water, it must not be overlooked that this was, at the end of the day, a piece of private litigation: see Lusk v Tong, Delegate of the Commonwealth Ombudsman [2019] FCCA 1335 at [10] and [11].

3.      Other cases have come before the Court where an issue which might have had broader general interest was argued on a costs application to have raised matters of public interest justifying a special costs order but it is an unusual circumstance where such an order is justified:  Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060. It does not seem to me that anything particularly unusual attaches to this matter which would justify the Court not ordering Mr Lusk to bear the costs of the proceeding. In that regard, it is to be noted that the concerns which seem to have underlain this application have not been made out, and it was, at the end of the day, a simple application for judicial review of an administrative decision by the Ombudsman not to conduct an investigation into a regulator.

4.      Consequently, I will accede to the Ombudsman’s application for an order for costs.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 1 July 2019

CORRECTIONS

1.      Order 1 – the words “, those costs” have been deleted