The Commissioner of Australian Federal Police v Cole (No 2)

The Commissioner of Australian Federal Police, in this case acting as the plaintiff, brought an action against Cole, the defendant, regarding an order for the proceeds of crime. The dispute was heard and determined by the Federal Court of Australia. The matter was an appeal from a decision made by the Federal Circuit Court, which had ordered Cole to pay the costs of the proceeding to the Commissioner. Cole, however, argued that the order for costs should be set aside on the basis that he had been forced to adjourn the proceedings on numerous occasions due to ill health. The Commissioner, on the other hand, maintained that the usual order for costs should be upheld.

The primary legal issue before the Federal Court was whether the general rule that costs follow the event should be departed from in this instance, given the defendant's repeated adjournments due to ill health. The court had to consider the balance between the principles of the usual order for costs and the exceptional circumstances presented by the defendant's health issues. Furthermore, the court had to assess the impact of the defendant's health-related adjournments on the proceedings and whether this warranted a departure from the general rule.

In determining the matter, the court acknowledged that the general rule that costs follow the event is a well-established principle in Australian law. However, it recognised that there may be instances where this rule should be departed from, particularly when exceptional circumstances, such as a party's ill health, have a significant impact on the proceedings. In this case, the court found that the defendant's health issues had indeed necessitated several adjournments, which had an impact on the progression of the case. Nevertheless, the court concluded that the defendant's actions in forcing the adjournments were unreasonable and that the usual order for costs should stand. The court made orders that the defendant pay the costs of the proceeding to the Commissioner, but with some departure to account for the defendant's ill health.