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 opposed to parties who are not personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest. Once, not so long ago, litigation was more of a luxury than it now is and for the most part only wealthy people could engage in it.

5․They also submitted that the cases involved conduct on the part of the Territory that had been found to be contrary to law in previous cases, namely Davidson v Director-General Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 and R v McIver [2022] ACTSC 206 at [54].

6․Second, the proceedings had the effect of clarifying the law as to the operation of the Human Rights Act 2004 (ACT) (HR Act).

7․Third, the proceedings will have the effect of resolving a significant number of other claims in an efficient and cost-effective way for the Territory.

8․Fourth, there was in fact a mixed outcome in the proceedings as a whole because significant aspects of Mr Williams’ claim will now proceed.

9․Fifth, the proceedings were heard and determined together and, as a consequence, there was substantial commonality of work which should be recognised and costs apportioned.

Respondent’s submissions

10․The respondent submitted that there were no special features warranting a departure from the usual rule that costs follow the event. The respondent made four principal points.

11․First, the fact that the case has raised valuable questions as to the interpretation of s 18(7) did not render the proceedings test cases in the relevant sense, even if they warranted a grant of leave to appeal. The respondent pointed to the earlier rejection of the argument that s 18(7) provided a standalone right to compensation in Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267, which was followed by the primary judge. In relation to the unlawful detention argument, the respondent submitted that the applicants’ argument was not supported by any authority or anything in the text or context of the HR Act.

12․Second, while it might be said to have been necessary for the applicants to incur the costs risk of making the application before the primary judge — where they received a favourable costs outcome — the appeals were not necessary but rather involved a forensic choice by the applicants to pursue them.

13․Third, there was a prospect that the appeals would not have succeeded even if the applicants succeeded on their s 18(7) arguments because there were other discretionary factors required to be considered under s 40C of the HR Act.

14․Fourth, that the applicants’ claims concerned rights under the HR Act does not itself qualify the proceedings as “public interest litigation” or warrant a departure from the usual rule. No provision of the HR Act establishes those propositions, and the applicants pursued the applications for their own pecuniary benefit.

15․In response to the applicants’ submissions, the Territory emphasised three additional points.

16․First, because the applications involved interlocutory applications for leave to proceed, no facts had been found and conclusions could not be drawn for present purposes from the fact that a different plaintiff had succeeded in proceedings against the Territory in Davidson or R v McIver.

17․Second, it remains to be seen whether or not the other proceedings concerning similar claims will be resolved in an “efficient and cost-effective way for the Territory” as submitted by the applicants.

18․Third, contrary to the applicants’ submissions, there was not a mixed outcome in circumstances where the costs orders made by the primary judge reflected the applicants’ level of success and those orders have not been disturbed on appeal.

Consideration and decision

19․The costs of the appeal are in the discretion of the court. Rule 1721 of the Court Procedures Rules 2006 (ACT) is applied to appeal proceedings by r 5001.

20․The usual rule is that costs follow the event.

21․In the present case, it is clear that the issues raised on the appeal included, in relation to s 18(7), an issue which had existed for some time in relation to the operation of the HR Act and hence was of some public importance. It is not uncommon for proceedings to involve questions of statutory interpretation of considerable significance.

22․However, it is also relevant that the proceedings were proceedings brought for the purpose of pecuniary gain. Each applicant was seeking to monetise a breach of the HR Act in circumstances where the primary judge found such a course was not open. The motivation of Mr McIver is reflected in the statement quoted in the court’s judgment at [143] “I liked the idea that I could get some compensation”. In Mr Williams’ case, the human rights claim was an adjunct to a claim for false imprisonment, the purpose of which was the seeking of damages.

23․It is also of significance that the proceedings involve appeals rather than proceedings at first instance. The applicants were refused leave by a judge of the court largely on the basis of his interpretation of the law which has been found to be correct. Before the primary judge, notwithstanding their loss, each applicant was the subject of costs orders which were favourable in their respective circumstances. Each applicant made a forensic choice to appeal from that decision.

24․To the extent to which the applicants relied upon the statement of Fox J in Kent v Cavanagh, the case was not comparable. The statement quoted above was made in the context of an unsuccessful application for an interlocutory injunction to restrain works for the erection of the Black Mountain Tower in Canberra on the grounds that its construction was beyond power and constituted a public nuisance. The action was brought with the fiat of the Attorney-General. It was brought by a number of prominent citizens who were residents of Canberra and who had no pecuniary interest in the outcome: see the list at Johnson v Kent (1975) 132 CLR 164 at 165. The nature of the dispute was, as described by Jacobs J when the matter reached the High Court, “essentially … an environmental dispute, the proposal being criticized by many on aesthetic grounds, visual and architectural, and on ecological grounds because of the proximity of the proposed tower to the natural reserve on Black Mountain”. Although in the Supreme Court an interlocutory injunction was refused, Fox J recorded in relation to costs that “the plaintiffs have succeeded on one point and have brought to notice a serious defect in compliance with statutory procedures”. He noted that he was also “to some extent influenced by broader considerations” and then made the statement quoted above.

25․When the matter came on for trial, the plaintiffs were successful: Kent v Johnson (1973) 21 FLR 177, but there was an agreement that neither party would seek an order in relation to costs: at 227. Following the Supreme Court’s judgment, the Commonwealth took steps to remedy the legal defect identified at trial by having the National Capital Development Commission approve the erection of the tower. By the time the matter was heard in the High Court, the issue was confined to a question about the extent of the Commonwealth’s executive power in the Territory, undoubtedly a question of public importance. On that issue, the plaintiffs were unsuccessful in their cross-appeal and ordered to pay the Commonwealth’s costs: 132 CLR at 174. Although there is much to be said for the general sentiments expressed in Fox J’s quoted statement, it is not possible to divorce it from the context in which it was made and apply it generally to individuals bringing proceedings against governments.

26․It is wrong to characterise the outcome of the case as being a mixed one. The relevant proceedings are the proceedings in the Court of Appeal. In those proceedings, both applicants were unsuccessful. It is not appropriate to characterise the proceedings by reference to the limited success that Mr Williams had before the primary judge in circumstances where, on the issues in the appeal, he was wholly unsuccessful.

27․Insofar as the applicants submitted that costs should be apportioned between the two appeals to recognise that there was an overlap between the two cases, that is a matter appropriately determined by the Registrar on any necessary assessment of those costs.

Orders

28․The orders of the Court are:

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.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 26 February 2025