Rolfe v The Territory Coroner (Costs)
[2025] NTCA 7
•24 July 2025
CITATION:Rolfe v The Territory Coroner & Ors (Costs) [2025] NTCA 7
PARTIES: ROLFE, Zachary Brian
v
THE TERRITORY CORONER
and
ATTORNEY-GENERAL OF THE NORTHERN TERRRITORY
and
NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY
and
NORTHERN TERRITORY POLICE FORCE
and
WALKER, Alice; LANE, Joseph; ROBERTSON, Rickisha
and
BAUWENS, Lee
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:AP 1 of 2023 (22300552)
DELIVERED: 24 July 2025
HEARING DATE: Determined on the papers
JUDGMENT OF: Grant CJ, Barr & Brownhill JJ
CATCHWORDS:
COSTS – Party/party – Exceptions to general rule that costs follow the event – Nature of the proceedings
Whether successful respondents entitled to costs orders against the appellant – Intervention at first instance on understanding no costs orders would be made – No negative implication precluding award of costs in favour of Attorney-General – Role of interveners directed to calling attention to matters of law rather than as parties in ordinary inter partes litigation – Proceedings directed to public interest rather than vindication of private rights of intervening parties – Question of costs on appeal should reflect position at first instance – No order as to costs.
Coroners Act 1993 (NT) s 34, s 38
Crown Proceedings Act 1993 (NT) s 17
Supreme Court Rules1987 (NT) r 63.28, r 82.26Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33, Blue Derby Wild Inc v Forest Practices Authority [2023] TASSC 14, Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervenor) (1974) 1 NSWLR 391, Council of the City of Liverpool v Weir (1984) 58 ALJR 213, CSR Ltd v Eddy (2005) 226 CLR 1, Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 3) [2016] ACTSC 249, Northern Territory v Sangare (2019) 265 CLR 164, Ohn v Walton (1995) 36 NSWLR 77, O’Keeffe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 591, Oshlack v Richmond River Council (1998) 193 CLR 72, Re Kerry (No 2) - Costs [2012] NSWCA 194, Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 & Anor [2020] NTCA 8, referred to.
REPRESENTATION:
Counsel:
Appellant:BJ Doyle KC with L Officer
First Respondent: Submitting appearance
Second Respondent: T Game SC with K Edwards
Third Respondent: E Nekvapil SC with JR Murphy
Fourth Respondent: I Freckelton AO KC with A Burnnard
Fifth Respondent: A Boe with D Fuller and G Boe
Sixth Respondent: No appearance
Solicitors:
Appellant:Tindall Gask Bentley Lawyers
First Respondent: Submitting appearance
Second Respondent: Solicitor for the Northern Territory
Third Respondent: North Australian Aboriginal Justice Agency
Fourth Respondent: Northern Territory Police Fire & Emergency Services Legal
Fifth Respondent: Hearn Legal
Sixth Respondent: No appearance
Judgment category classification: B
Number of pages: 18
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rolfe v The Territory Coroner & Ors (Costs) [2025] NTCA 7
No. AP 1 of 2023 (22300552)
BETWEEN:
ZACHARY BRIAN ROLFE
Appellant
AND:
THETERRITORY CORONER
First Respondent
AND:
ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Second Respondent
AND:
NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY
Third Respondent
AND:
NORTHERN TERRITORY POLICE FORCE
Fourth Respondent
AND:
ALICE WALKER; JOSEPH LANE; RICKISHA ROBERTSON
Fifth Respondent
AND:
LEE BAUWENS
Sixth Respondent
CORAM: GRANT CJ, BARR & BROWNHILL JJ
DECISION ON COSTS
(Delivered 24 July 2025)
THE COURT:
This Court delivered its decision on the appeal on 28 June 2023.[1] The questions which arose for consideration on the appeal were whether there was a common law privilege against exposure to disciplinary and other civil penalties which would ordinarily have application in Northern Territory coronial proceedings; and, if there were, whether s 38 of the Coroners Act 1993 (NT) (‘the Act’) and the other facilitative powers in that legislation had abrogated or qualified that privilege such that the appellant could be compelled to answer questions in the course of a coronial inquest then underway.
This Court concluded that, at the time of the enactment of the Act, penalty privilege was not imported into the conduct of coronial proceedings under that legislation.[2] Alternatively, if penalty privilege had application in coronial proceedings unless abrogated, this Court found that the 2002 amendment to s 38 of the Act operated to abrogate penalty privilege by necessary intendment.[3] The result was that the appellant failed to establish the availability of common law penalty privilege in coronial proceedings. The appeal was dismissed.
The second, third, fourth and fifth respondents all seek costs orders against the appellant. The appellant opposes the making of any such orders. Given the contest in relation to the making of costs orders, it is necessary to set out some of the procedural history to put the respective submissions into context.
Proceedings in the coronial inquest
Sergeant Paul Kirkby was a police officer who had been called as a witness at the coronial inquest into the death of Kumanjayi Walker. In October 2022, Sergeant Kirkby objected to giving evidence on the basis that his answers might expose him to a disciplinary penalty under the Police Administration Act1978 (NT), asserting common law penalty privilege in support of his objection. The appellant and the sixth respondent were two police officers who were also to be called to give evidence during the coronial inquest. They made submissions in support of Sergeant Kirkby’s objection.[4] The Coroner dismissed the objection on the basis that, to the extent that penalty privilege was a substantive common law right inherently capable of application in a coronal inquest, the privilege had been abrogated and replaced by the scheme set out in s 38 of the Act.[5]
Proceedings in the Supreme Court
Following the Coroner’s determination, on 25 October 2022 the sixth respondent commenced proceedings for judicial review in the Supreme Court seeking declarations that: (1) penalty privilege had not been abrogated by s 38 of the Act; and (2) the Coroner did not have power to compel a person to answer questions pursuant to s 38(1) of the Act in breach of penalty privilege.[6]
On 7 November 2022, the second respondent (‘the Attorney-General’) intervened in the proceeding as of right pursuant to s 17(1)(a) and s 17(1)(b) of the Crown Proceedings Act 1993 (NT).[7] Relevantly, s 17(1)(a) permits the Attorney-General to intervene on behalf of the Crown in proceedings that, inter alia, involve the interpretation of a law of the Territory. The Attorney-General opposed the making of the declarations and sought the dismissal of the application for declaratory relief, but did not seek any order as to costs.
On 10 November 2022, the appellant applied to be joined as a plaintiff in the Supreme Court proceeding. The Supreme Court noted that he also had objected to answering a question in the coronial inquest on the basis that the answer might expose him to a disciplinary penalty and determined that it was appropriate that he be joined.[8]
On 11 November 2022, the third respondent (‘NAAJA’) made application to join the proceedings as an intervener. In written submissions made in support of that application, senior counsel for NAAJA identified the interest directly affected as the right under s 43(3) of the Act to cross-examine witnesses, specifically the plaintiff and the proposed second plaintiff (in these subsequent appeal proceedings, the sixth respondent and the appellant respectively).[9] The written submissions included the following statement in relation to costs:[10]
NAAJA will not seek any order for costs, regardless of the outcome.
On 11 November 2022, the fourth respondent (‘Northern Territory Police’) also made an application to join the proceedings as an intervener. In the relevant supporting affidavit, the interest of Northern Territory Police was said to be that ‘the outcome could have significant consequences for the membership and the operation of the police disciplinary system’.[11]
On 21 November 2022, Alice Walker, Serita Lane and Rickisha Robertson made application to intervene in the proceedings on behalf of three families referred to in the Coronial inquest and subsequent court proceedings as the ‘WLR families’.[12] Their stated interest was ‘in the Territory Coroner hearing evidence from the [sixth respondent] as well as [the appellant], including in relation to topics that … have prompted him to seek the declaration’.[13]
The Supreme Court noted that each of the proposed interveners (that is, the third, fourth and fifth respondents in the present proceedings) had been granted leave to appear at the inquest on the basis of ‘sufficient interest’ under s 40(2) of the Act, and held that each thereby had a sufficient interest in the outcome of the Supreme Court proceeding to justify a grant of leave to intervene.[14]
As already noted above, NAAJA stated expressly that it would not seek any order for costs in the Supreme Court proceeding. In written submissions filed before an order for joinder had been made in its favour, the Northern Territory Police stated:[15]
… applications for declaratory relief by Sergeant Bauwens and Constable Rolfe, should he be joined as a plaintiff, should be declined, and costs should be awarded against them.
Counsel for the sixth respondent raised the issue of costs before the presiding Judge at the commencement of the Supreme Court proceeding on 23 November 2022, at the point where the Court was about to make orders in relation to joinder. The relevant exchange was as follows:[16]
HER HONOUR: … So we have appearances. Could I just start with the issue of joinder. The Attorney-General has indicated no objection to the joinder of the plaintiff, or any of the other interveners. I haven't heard from the plaintiff, but the plaintiff has expressed no opposition, at least in written submissions. And it does appear to me that both, that Mr Rolfe has established an entitlement to be joined as a plaintiff. And that the other interveners – the interveners, that is – well, the Attorney-General appears as of right - NAAJA, the Northern Territory Police, and the families, have likewise established sufficient entitlement, or interest, to be joined, as interveners.
So can we take that as read, and I can simply make those orders joining those – well, joining Mr Rolfe as a plaintiff, and giving leave to the others to be – to intervene?
MR BOYLE: The only issue with that, your Honour, and it's Boyle here for Mr Bauwens ---
HER HONOUR: Yes.
MR BOYLE: --- is that in the submissions filed on behalf of the Northern Territory Police Force, there is a claim in the final paragraph of the submissions, that they ought to be entitled to their costs in the event that the application is unsuccessful. And we would say that it should be a condition of any grant of leave, the rest of the interveners in their – or proposed interveners, in their submissions, effectively say they will not seek any costs, and are effectively undertaking to bear their own costs. If it's necessary, I can take your Honour to some authority for the proposition that an intervener, in effect, ought not to be entitled to their costs.
Even where their contentions are ultimately accepted.
HER HONOUR: Yes.
MR BOYLE: But that's the only condition I'd put on that.
MR FRECKELTON: Your Honour, that issue has been superseded by communications laterally [sic]. The application for costs, on behalf of the Northern Territory Police Force, should they be successful in the outcome that they are seeking, has been withdrawn.
HER HONOUR: All right, thank you very much for that.
To this point, the Attorney-General had intervened as of right but had not included a costs order as part of the relief sought. NAAJA and the Northern Territory Police had stated expressly that they would not be seeking costs. The WLR families had not foreshadowed any claim for costs prior to obtaining leave to intervene, and their counsel did not correct or qualify the statements made by the sixth respondent’s counsel that the applicant interveners were ‘effectively undertaking to bear their own costs’ and that ‘an intervener … ought not to be entitled to their costs’. In the absence of express agreement, the WLR families would probably have been bound by their counsel’s conduct. In any event, the WLR families did not seek any costs order after Supreme Court had refused the plaintiffs’ application.[17]
The Supreme Court did not expressly condition the grant of leave to intervene to NAAJA, the Northern Territory Police and the WLR families on their undertaking not to seek costs but, as the appellant submits, ‘it was in those circumstances that their applications to intervene were granted’.[18]
The appeal to this Court
Having been accepted as interveners, NAAJA, the Northern Territory Police and the WLR families became parties to the Supreme Court proceeding.[19] The Attorney-General intervened as of right and thereby also assumed the status of a party to the proceeding.[20] Once the appellant decided to institute an appeal, he did not have any choice as to the parties to the appeal. The necessary respondents were determined by r 82.26 of the Supreme Court Rules1987 (NT), the relevant parts of which are extracted below:
82.26 Parties
(1) Each party to the proceeding in the court or tribunal below and directly affected by the relief sought in the notice of appeal or interested in maintaining the decision being appealed must be made a respondent to the appeal.
(2) A person who was not a party to the proceeding in the court or tribunal below may be joined as a respondent if the person is directly affected by the relief sought in an appeal or interested in maintaining the decision being appealed from.
(3) The Court may order the addition or removal of a person as a party to an appeal.
None of the interveners joined pursuant to r 82.26 applied to be removed as a respondent to the appeal. To the contrary, all made the decision to actively participate by separately filing written submissions. All intervener respondents were represented at the hearing of the appeal, and there was substantial overlap in the positions adopted by the respondents.[21] The appellant was on notice that three of four respondents would seek costs against him if he were unsuccessful. With the exception of NAAJA, the interveners had indicated in their written submissions that they would be seeking costs.[22] However, it is unclear as to when the appellant was first put on notice to this effect. The appeal was filed on 5 January 2023, the submissions were not filed and served until late-March 2023 and the appeal was heard on 11 April 2023.
The appellant submits that the issue raised by him in the appeal was one of importance not only to him but to other witnesses in the inquest. He submits that there were finely balanced legal questions which informed the question of statutory construction; and further that, in view of uncertainties arising from High Court decisions and differing approaches taken by intermediate courts to those issues, it was not unreasonable for him to raise his contentions in an intermediate appellate court.[23] Those submissions may be accepted, but they are not of themselves determinative of the issue of costs in this Court.
The appellant also submits that it was not necessary for four respondents each to participate to the extent of filing written submissions and being represented at the hearing; and further, that it would be inequitable if he were to suffer four adverse costs orders in respect of the appeal. He contends that the costs orders made by this Court should reflect the position in relation to costs taken by the interveners in the Supreme Court proceeding. The appellant’s submissions in relation to the position of the Attorney-General raise some additional issues, which are discussed further below.
All interveners subsequently joined as respondents to the appeal acknowledge that costs are in the discretion of the Court but contend that the ordinary rule should apply, with the result that the appellant should be ordered to pay the costs of each of the respondents on the basis that they successfully resisted the appeal.[24]
It may be accepted at the outset that the purpose of a costs order is to compensate the person in whose favour it is made, rather than to punish the person against whom the order is made.[25] It may also be accepted that the general rule is that, if the court makes any order as to costs, it is to order that the costs follow the event, unless it appears that some other order should be made having regard to the circumstances.[26] That general rule is based on the principle that justice is not achieved if the party who is responsible for others incurring the costs of litigation does not bear those costs. In ordinary inter partes civil litigation, where the plaintiff is successful it is the defendant who has been responsible for the costs incurred because it has resisted something to which the plaintiff was entitled. Where the defendant is successful, it is the plaintiff who has been responsible for the costs incurred because it has claimed something to which it was not entitled.
In both of those scenarios, the successful party has been forced to the litigation. In both of those scenarios, the successful party has a substantive legal right to vindicate as opposed to an interest sufficient to confer standing in an administrative law sense. That is not so in the present circumstances in relation to the positions of the parties who had been interveners in the proceedings before the Supreme Court. Those circumstances are clearly distinguishable from cases such as Northern Territory v Sangare,[27] or Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 & Anor.[28] This is not the kind of case in which the ordinary principles in relation to costs, and particularly the principle that the unsuccessful party should pay the costs of the successful party, should automatically or necessarily be applied.
The relevant circumstances are that: (a) the genesis of the appeal was a coronial inquest, and the issue concerned the asserted right of a witness or witnesses in that hearing; (b) the several respondents had indicated that they would not seek costs at the time of seeking leave to intervene in the Supreme Court proceeding (and did not subsequently seek costs); and (c) the several respondents now seeking costs orders did not contest the joinder by operation of r 82.26 or apply to be removed as parties to the appeal, and actively participated in the appeal. The coronial proceedings were themselves incapable of determining or affecting substantive rights. The criminal proceedings in relation to the death had already been finally determined and the coroner’s function is ordinarily limited to finding the identity of the deceased, the time and place of death, the cause of death and any relevant circumstances concerning the death.[29] Where the deceased was held in custody at the time of the death, the coroner may also report on matters concerned with the administration of justice that are relevant to the death, and may make recommendations to the Attorney-General with respect to the prevention of future deaths in similar circumstances.[30] That function is directed to the public interest rather than the vindication of any private rights of the intervening parties.
The fact that the proceedings involved a public interest aspect does not, of itself, warrant departure from the general rule that costs follow the event.[31] However, it is a relevant consideration that there was a substantial public interest in determining the availability of an important common law privilege in coronial proceedings, which was the issue in question in the judicial review proceedings before the Supreme Court and in the subsequent appeal before this Court, and that there was uncertainty arising out of the High Court authorities relevant to that issue. Given the character of the coronial proceedings in which that issue arose, and the nature of the issue, the role of each of the interveners was more directed to advising the Court and calling attention to particular matters of law rather than as a party in ordinary inter partes litigation. That is no doubt why NAAJA, the Northern Territory Police and the WLR parties intervened in the proceedings before the Supreme Court on the understanding – either express or tacit – that they would not be entitled to their costs of those proceedings whatever the result might be.
That understanding is consistent with the fact that costs orders are rarely made in favour of interveners. That is particularly so where the role of the intervener is more in the nature of amicus curiae for the purpose of assisting the court on points of law which may not otherwise have been brought to its attention, rather than for the purpose of protecting some legal right or substantive interest which is different from those of the parties. An order for the payment of the intervener’s costs will ordinarily only be made in the exercise of the discretion where the court considers that justice requires that result, and particularly where the intervener has in substance acted as the sole or principal respondent. There is no reason in principle why the same approach should not be taken to the costs of the appeal proceedings. Although the interveners obtained the status of parties to the Supreme Court proceedings, with all the benefits and burdens of that status, and were consequently respondents to the appeal, their roles in the proceedings remained the same.
This was particularly so in the case of the Attorney-General. Section 17(1) of the Crown Proceedings Act states expressly that the right of intervention is ‘for the purpose of submitting argument’ on the proper interpretation or validity of the relevant legislative provision, or the scope of the relevant legislative, executive or judicial power, as the case may be. There is nothing to suggest that purpose changes at appeal level. The Attorney-General was representing the Crown interest in the matter rather than fulfilling an adversarial role, and it is of some significance for these purposes that the commencement of the judicial review proceedings was occasioned by a lack of clarity in a piece of Northern Territory legislation concerning the availability of penalty privilege.
Quite apart from those considerations, the appellant argues that a court is not permitted to make a costs order in favour of the Attorney-General in the event of a ‘successful intervention’.[32] That submission is based upon the terms of s 17(3) of the Crown Proceedings Act, which provides:
If the Attorney-General intervenes in proceedings under this section, the court may make an order for costs against the Crown to reimburse the parties to the proceedings for costs occasioned by the intervention, but the court shall not make such an order unless there are special circumstances which in the opinion of the court make it appropriate to do so.
Although there are no express words in s 17(3) of the Crown Proceedings Act preventing the making of a costs order in favour of the Attorney-General (or the Crown), the appellant asserts a negative implication to that effect. That submission must be rejected. Section 17(3) enables the court in which the intervention takes place, in special circumstances, to make a costs order against the Crown to reimburse the parties for the costs occasioned by the intervention. The subsection modifies the court’s usual discretion as to costs by imposing a ‘special circumstances’ condition on any award of costs against the Crown arising out of an intervention by the Attorney-General in the Crown interest. Its purpose is to protect the Crown against adverse costs orders rather than to protect the parties in proceedings in which the Attorney-General intervenes.
The case of O’Keeffe Nominees Pty Ltd v BP Australia (No 2) on which the appellant relies in asserting the negative implication was directed specifically to intervention by Attorneys-General in proceedings relating to a matter arising under the Constitution or involving its interpretation. The court in that case drew a distinction between interventions under s 78A of the Judiciary Act 1903 (Cth) on constitutional issues, and cases in which an Attorney-General intervenes pursuant to a broader statutory right. In the latter circumstance, the court’s general discretion to award costs is not displaced. Even leaving aside that distinction, the court in O’Keeffe Nominees Pty Ltd expressly recognised that the approach it had adopted was inconsistent with the general rule that an intervener is a party to proceedings with the benefits and burdens of that status. To the extent that the appellant also relies on the decision of the Supreme Court of the Australian Capital Territory in Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 3), that decision does not adopt the approach taken in O’Keeffe Nominees Pty Ltd.
In any event, the authorities relied on by the appellant are decisions involving intervention at first instance.[33] The costs application by the Attorney-General in the appeal is to be determined in a manner unconstrained by s 17(3) of the Act. However, it does not follow that a costs order should be made in favour of the Attorney-General. In our opinion, and in reference to the facts in this case, the proper role of the Attorney-General pursuant to s 17(1) of the Crown Proceedings Act was to assist the Supreme Court and this Court in the proper interpretation of s 38 of the Act in relation to the availability of penalty privilege. That was and remained the ‘question in issue’. Irrespective of the merits of the Attorney’s intervention, for the reasons we have already described that role was properly discharged in the circumstances of this case without expectation that the intervention would result in an order for costs. As the High Court made clear in Council of the City of Liverpool v Weir:[34]
... [A]n intervenor, even a Minister responsible for the administration of the legislation in question in this case, cannot expect as of course that the unsuccessful party to the litigation in which he has intruded should bear the extra burden of his costs, even if his intervention was well-intentioned and proved to be of assistance to the court.
Where there are multiple successful defendants or respondents whose interest is identical and there is no possible conflict of interest between them, and who are separately represented, the court will not normally allow more than one set of costs (assuming the matter is one in which costs are properly awarded). There was no conflict between the interests of the various interveners on this issue. All were contending that the appellant should be compelled to answer questions in the coronial inquest. All took the position that a coronial inquest is not a proceeding of a kind to which penalty privilege has application. However, the Attorney-General, Northern Territory Police and the WLR families went the further step of submitting that to the extent penalty privilege would otherwise apply, it had been abrogated and s 38 of the Act conferred a qualified privilege consistent with the operation of the privilege against self-incrimination. NAAJA was the only respondent whose submissions were ultimately accepted in full by this Court. However, given our view as to the relevant costs considerations, the fact that the NAAJA’s arguments found greater favour than those of the other respondents does not give rise to a special entitlement or otherwise elevate its entitlement to a costs order.
For these reasons, we decline to make the costs orders sought by the respondents and we make no order as to costs.
________________________
[1]Rolfe v The Territory Coroner & Ors [2023] NTCA 8.
[2]Rolfe v The Territory Coroner & Ors [2023] NTCA 8 at [56]-[58], [72]-[73].
[3] Ibid, at [75].
[4]See Bauwens and Anor v The Territory Coroner [2022] NTSC 92 at [2].
[5]See Inquest into the death of Kumanjayi Walker (Ruling No 5) [2022] NTLC 024. The statutory 'scheme' in s 38 of the Act is extracted in Rolfe v The Territory Coroner & Ors [2023] NTCA 8 at [6]. This Court ultimately concluded at [73] that s 38 was concerned only with the privilege against self-incrimination and did not import a modified form of penalty privilege into coronial proceedings.
[6] Bauwens and Anor v The Territory Coroner [2022] NTSC 92 at [4].
[7] Bauwens and Anor v The Territory Coroner [2022] NTSC 92 at [7].
[8] Bauwens and Anor v The Territory Coroner [2022] NTSC 92 at [9]. See also transcript 23 November 2022, p 3.
[9]See Submissions of North Australian Aboriginal Justice Agency Ltd on Application to Intervene, 21 November 2022, par 2.
[10] Ibid, par 7.
[11] See Affidavit of Jessica Readman promised 11 November 2022, filed in the Supreme Court proceeding, par 6.
[12] It may be noted that, on 23 November 2022, counsel for the WLR families announced his appearance on behalf of Ms Walker, Ms Robertson and Joseph Lane (but not Serita Lane). The change of applicant is not relevant for present purposes given that the applicants were each seeking to intervene in a representative capacity on behalf of one of the three families.
[13]Affidavit of Christian Hearn promised 18 November 2022, filed in the Supreme Court proceeding, par 13.
[14] Bauwens and Anor v The Territory Coroner [2022] NTSC 92 at [10].
[15]Outline of Submissions by the Northern Territory Police Force, 21 November 2022, par 37.
[16] Transcript 23 November 2022, pp. 3-4.
[17] Bauwens and Anor v The Territory Coroner [2022] NTSC 92. In written submissions (at par 16) dated 19 March 2023 and filed in the appeal hearing, the WLR families acknowledged that they had not sought costs of the proceedings in the Supreme Court.
[18]Appellant’s written submissions on costs, 19 September 2023, par 4(2).
[19]Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervenor) (1974) 1 NSWLR 391 at 396E per Hutley JA (Reynolds and Glass JJA agreeing).
[20]See, for example, Crown Proceedings Act 1993 (NT), s 17(2).
[21] See Rolfe v The Territory Coroner & Ors [2023] NTCA 8 at [9]-[12].
[22]See the written submissions of the Attorney-General dated 23 March 2023 at par 108; submissions of Northern Territory Police dated 22 March 2023 at par 39; submissions of the WLR families dated 19 March 2023 at par 16. The submissions of NAAJA dated 22 March 2023 made no reference to seeking consequential orders as to costs.
[23] See the appellant’s arguments in relation to the privilege against exposure to penalty at pars 23-34 of the appellant’s written submissions in the appeal dated 1 March 2023.
[24] The respondents refer, inter alia, to Northern Territory v Sangare (2019) 265 CLR 164 at [12]-[15].
[25]Northern Territory v Sangare (2019) 265 CLR 164 at [25]; Ohn v Walton (1995) 36 NSWLR 77 at 79; Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34].
[26]This general rule has been said to found a ‘reasonable expectation’ on the part of a successful party of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at [67], [134]; Northern Territory v Sangare (2019) 265 CLR 164 at [25].
[27]Northern Territory v Sangare (2019) 265 CLR 164.
[28]Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 & Anor [2020] NTCA 8.
[29]Coroners Act, s 34(1)(a).
[30]Coroners Act, s 34(1)(a).
[31]Oshlack v Richmond River Council (1998) 193 CLR 72 at [90]; Re Kerry (No 2) - Costs [2012] NSWCA 194 at [13], [15]; cf CSR Ltd v Eddy (2005) 226 CLR 1 at [78]-[81].
[32]See Appellant’s written submission on costs, pars 16-17. For that proposition, the appellant relies on O’Keeffe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 591; Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 3) [2016] ACTSC 249 at [17]; and Blue Derby Wild Inc v Forest Practices Authority [2023] TASSC 14 at [17].
[33]In this respect we accept the analysis of those decisions in the Supplementary Submissions Of The Second Respondent, pars 12-16.
[34]Council of the City of Liverpool v Weir (1984) 58 ALJR 213 at 216E.
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