Monck v Commonwealth of Australia (No 2)

[2020] NTCA 1

CITATION:Monck v Commonwealth of Australia (No 2) [2020] NTCA 1

PARTIES:  MONCK, Brendan Paul

v

COMMONWEALTH OF AUSTRALIA

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:No. AP 10 of 2017 (21560966)

DELIVERED:  31 January 2020

HEARING DATES:  On the papers

JUDGMENT OF:  Grant CJ, Southwood J and Mildren AJ

CATCHWORDS:

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion

Proceedings at first instance dismissed – Application for leave to appeal dismissed – Respondent seeks costs in accordance with general rule that costs follow the event – Impecuniosity of unsuccessful party cannot without more justify a decision to deny successful party its costs – Respondent’s character as a body politic irrelevant to the application of the basic principle – Costs awarded to respondent.

Northern Territory v Sangare [2019] HCA 25, applied.

REPRESENTATION:

Counsel:

Applicant:Self-represented

RespondentT Anderson

Solicitors:

Applicant:Self-represented

RespondentAustralian Government Solicitor

Judgment category classification:    B

Number of pages:  3

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Monck v Commonwealth of Australia (No 2) [2020] NTCA 1

No. AP 10 of 2017 (21560966)

BETWEEN:

BRENDAN PAUL MONCK

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM:    GRANT CJ, SOUTHWOOD J and MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 31 January 2020)

THE COURT:

1. The applicant brought an application for leave to appeal to this Court from a decision dismissing his claim in negligence against the respondent.  The applicant’s contention was that the respondent owed him a common law duty of care to exercise its powers under the child support legislation so as to ensure, as far as practicable, that the applicant did not suffer psychological injury.  That application for leave was dismissed on the basis that the Child Support Agency had a statutory responsibility to exercise its powers in the public interest which was not concomitant with a parallel common law duty of care to persons subject to assessment and collection under the legislation.

2. The respondent has sought an order that the applicant pay its costs of and incidental to the application for leave to appeal and the proceedings at first instance.  That order is sought in accordance with the general rule that costs follow the event.  In written submissions put to the Court, the applicant appears to accept that he is obliged to pay costs given that the substantive proceedings and the application for leave to appeal were dismissed, and says that he is not “attempting to avoid” that consequence.  His contention is that he is without means and would be unable to satisfy any order for costs made in favour of the respondent.

3. The High Court has recently considered the question whether in the exercise of the judicial discretion as to costs at the conclusion of litigation the impecuniosity of the unsuccessful party is, without more, a consideration that may justify a decision to deny the successful party its costs.  As the High Court there stated:[1]

   … In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.

4. A successful party’s character as a body politic or public authority is irrelevant to the application of that basic principle, except in circumstances where it has commenced proceedings for a “public interest” outcome such as the resolution of uncertainty attending the valid exercise of powers.[2]  In this matter, the litigation was commenced by the applicant in the attempted vindication of a private interest.

5. So far as the question of futility is concerned, the High Court stated:[3]

   In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so [see Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469 at 4; MZARS v Minister for Immigration and Border Protection [2017] FCA 177 at [36]-[37]; Graham v Minister for Immigration and Border Protection [No 2] [2018] FCA 1116 at [16]-[17]]. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant [Tozier v Hawkins (1885) 15 QBD 680; The Commonwealth v Mewett (1997) 191 CLR 471 at 535; [1997] HCA 29].

6. There is nothing in the conduct of the respondent which would justify a different outcome.[4]

   Order

7. The applicant is to pay the respondent’s costs of and incidental to the proceedings at first instance and the application for leave to appeal.

[1]Northern Territory v Sangare [2019] HCA 25 at [27].

[2]Northern Territory v Sangare [2019] HCA 25 at [28]-[33].

[3]Northern Territory v Sangare [2019] HCA 25 at [35].

[4]Northern Territory v Sangare [2019] HCA 25 at [25].