McIver v ACT (No 2)

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.