Palmer & Anor v The State of Western Australia and Anor

The High Court of Australia considered an application by the State of Western Australia and its Premier and Attorney-General for an order that Clive Frederick Palmer pay their costs of contempt proceedings that Mr Palmer had commenced and subsequently discontinued. The contempt proceedings alleged that the Premier and Attorney-General had committed contempt of court through public comments disparaging Mr Palmer for his legal challenge to Western Australia's COVID-19 border closures.

The central legal issue before the Court was whether Mr Palmer should be ordered to pay the respondents' costs of the discontinued contempt proceedings and the costs of the application for that order. This required the Court to consider the applicable rules regarding costs upon discontinuance of proceedings, particularly in the context of contempt proceedings, and to determine whether Mr Palmer's conduct in pursuing the contempt proceedings warranted an order for costs in favour of the respondents.

The Court reasoned that while there might be ambiguity as to whether the general rule for discontinuance (Rule 27.10.6 of the High Court Rules 2004) or the specific rule for contempt proceedings (Rule 11.05) applied, the discretion to award costs in contempt matters was broad. Applying principles from previous High Court decisions, the Court determined that the exercise of this discretion involved considering whether a party had acted unreasonably. The Court found that Mr Palmer's pursuit of the contempt proceedings was characterised by a significant lack of diligence and efficiency, requiring repeated reformulation and particularisation of his case, which remained inadequately articulated even at the time of discontinuance. This unreasonable conduct, the Court held, had put the respondents to unnecessary expense.

Consequently, the Court ordered that Mr Palmer pay the respondents' costs of and incidental to the contempt proceedings up to the date of discontinuance, as well as the costs of the application for that order.