Sullivan v Secretary, Department of Defence

Sullivan filed an application for judicial review of a decision by the Secretary of the Department of Defence to suspend him from his duties, suspecting a breach of the Australian Public Service Code of Conduct. Sullivan sought leave to discontinue the proceeding and an order for the Department to pay his costs. The Court considered whether it was appropriate to grant leave to discontinue and whether it was reasonable for the Department to bear Sullivan's costs. The Court noted that while costs are generally in the discretion of the Court, and a party who discontinues a proceeding with leave is not automatically required to pay the other party's costs, the conduct of the parties and the reasons for the discontinuance can heavily influence the exercise of the discretion. The Court observed that if both parties have acted reasonably throughout the proceedings, and the litigation was settled or its further prosecution became futile, the Court would usually make no order as to the costs of the proceedings. In this case, the Court was satisfied that it was proper to grant Sullivan leave to discontinue the proceeding, but found that neither party acted unreasonably in the circumstances of the proceeding. Therefore, the Court made no order as to costs.

The Court granted Sullivan leave to discontinue the proceeding and made no order as to costs.