McIver v ACT (No 2) - [2025] ACTCA 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	McIver v ACT (No 2)
Citation:	[2025] ACTCA 7
Hearing Date:	On the papers
Decision Date:	26 February 2025
Before:	Mossop, Loukas-Karlsson and Rangiah JJ
Decision:	Proceedings ACTCA 9 of 2024 (McIver) (1) The applicant/appellant is to pay the respondent’s costs of the appeal. Proceedings ACTCA 10 of 2024 (Williams) (1) The applicant/appellant is to pay the respondent’s costs of the appeal.
Catchwords:	CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Costs – whether proceedings a matter of public importance, involving conduct of Territory previously found to be unlawful – whether “mixed outcome” in proceedings – whether commonality of work involved in hearing claims together – whether judgment assisting in the resolution of other claims ought to have positive costs consequences – outcome of appeal not mixed – matter of public importance raised but brought for pecuniary gain – no departure from the usual rule as to costs
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 1721, 5001 Human Rights Act 2004 (ACT), ss 18(7), 40C
Cases Cited:	Davidson v Director-General Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Johnson v Kent (1975) 132 CLR 164 Kent v Cavanagh (1973) 1 ACTR 43 Kent v Johnson (1973) 21 FLR 177 Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 McIver v Australian Capital Territory [2024] ACTCA 36 R v McIver [2022] ACTSC 206
Parties:	Anthony Daniel McIver ( Applicant) Derek Joseph Williams (Applicant) Australian Capital Territory ( Respondent)
Representation:	Counsel K Foley SC with J McComish ( Applicants) P Bindon ( Respondent)
Solicitors Ken Cush and Associates ( Applicants) ACT Government Solicitor ( Respondent)
File Numbers:	ACTCA 9 of 2024 ACTCA 10 of 2024
Decision Under Appeal:	Court/Tribunal: ACT Supreme Court Before: Curtin AJ Date of Decision: 17 April 2024 Case Title: McIver v Australian Capital Territory; Williams v Australian Capital Territory Citation: [2024] ACTSC 112

THE COURT

Introduction

1․In these two proceedings, McIver v Australian Capital Territory and Williams v Australian Capital Territory, the court granted leave to appeal but dismissed each appeal: see McIver v Australian Capital Territory [2024] ACTCA 36. There was no agreement between the parties in relation to costs and they made written submissions on costs.
2․The applicants sought that there be no order as to costs in each appeal. The respondent submitted that costs should follow the event.

Applicants’ submissions

3․The applicants identified five reasons which, in combination, were said to justify a departure from the usual rule as to costs. In summary, those reasons were as follows.
4․First, the proceedings raised matters of public importance. They referred to the decision of Fox J in Kent v Cavanagh (1973) 1 ACTR 43 at 55:
It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at risk of paying costs to the Government if they fail. They find themselves…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McIver v ACT (No 2)

Details

AGLC: McIver v ACT (No 2) [2025] ACTCA 7
Case: [2025] ACTCA 7
Decision Date: 26 February 2025

CaseChat Overview and Summary

The Full Court of the Supreme Court of the Australian Capital Territory considered an application for costs following an appeal in proceedings between McIver and the Australian Capital Territory, and a related appeal by Williams against the same respondent. The core dispute concerned the assessment of costs following earlier proceedings where the Territory's conduct had been found to be unlawful.

The Court was required to determine whether the appeals were a "matter of public importance" and whether the "mixed outcome" of the proceedings, the commonality of work in hearing claims together, and the judgment's assistance in resolving other claims warranted a departure from the usual rule regarding costs. Specifically, the Court had to assess if the appeals themselves, or the underlying issues, justified a special costs order.

The Court reasoned that while the appeals raised matters of public importance and the Territory's conduct had previously been found unlawful, the outcome of the appeals was not mixed, with the applicant/appellant not succeeding on the substantive grounds. Furthermore, the Court found that the claims were brought for pecuniary gain, which weighed against granting a special costs order. Consequently, the Court concluded there was no basis to depart from the usual rule that the unsuccessful party should pay the costs of the successful party.

Accordingly, the Court ordered that the applicant/appellant in each of the proceedings (McIver and Williams) was to pay the respondent's costs of the respective appeals.

Orders

Orders of the court

Proceedings ACTCA 9 of 2024 (McIver)

(1) The applicant/appellant is to pay the respondent’s costs of the appeal.

Proceedings ACTCA 10 of 2024 (Williams)

(1) The applicant/appellant is to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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