Vietnam Veterans Association of New South Wales Branch Inc v Gallagher, J.P.

[1994] FCA 600

6 0 0

JUDGMENT No. ..... ,.,...d .,.-.,,

IN THE FEDERAL COURT OF AUSTRALIA 1

SOIlTH WALES DISTRICT REGISTRY No. G 69 of 1994

B E T W E E N :

VIETNAK VETERANS' ASSOCIATION OF
NEW SOUTE WALES BRANCH INC

First Applicant

GEOFFREY DAVIS

Second Applicant

- and -

JOHN PATRICK GWAGIIER, PRINCIPAL MZHBBR,

VETERANS' REVIEW BOARD

First Respondent

JAMES HARSH, SENIOR -ER,

VETERANS' REVIEW BOARD

Second Respondent

REPATRIATION COMMISSION

Third Respondent

m:  Heerey J

m: 2 September 1994

PLACE :  Melbourne (heard in Sydney) RECEIVED

MINUTE OF ORDER	- 6 SEP 1994
FEDERAL CWRT OC

The Court orders:	REOISTRV
NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules

1.   The applicants pay the first respondent's costs of this

proceeding, including reserved costs.

ZEJ THE FEDERAL COURT OF AUSTRAtIA	1
1

I TRY	)	No. G 69 of 1994
)

RAL DIVISION 1

B E T W E E N :

VIBTN?iM VETERANS' ASSOCIATION OF
NEW SOUTH WALES BRANCH INC

First Applicant

GEOFFREY MVIS

Second Applicant

- and -

JOHN PATRICK -R, PRINCIPAL HEHEER,

VETERANS' REVIEW BOARD

First Respondent

JAHES MARSH, SENIOR MEMBER,
VETERANS' REVIEW BOARD

Second Respondent

REPATRIATION COMMISSION

Third Respondent

im!sB:	Heerey J
WlE:	2 September 1994

a%x: Melbourne (heard in Sydney)

RULING ON COSTS

I have received written submissions on behalf of the applicants and the first respondent on the question of costs.

The second respondent, Mr James Marsh, did not appear by	counsel in the proceedings and does not seek any order for
costs. At the conclusion of the hearing the third respondent, the Repatriation Commission, indicated by its counsel that it would not be seeking costs.
Although counsel for the first respondent had foreshadowed an application for costs on an indemnity basis, the written submissions only sought party and party costs.
In my opinion the first respondent was wholly successful and there are no considerations to displace the usual principle that costs follow the event. In Ritter v Godfrey [l9201 2 KB
47 at 60 Atkin LJ said:

"In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation or

(2) has done something connected with the institution or the

conduct of the suit calculated to occasion unneceesary litigation and expense or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains."

There is no suggestion that any conduct of the first respondent was of a kind which would bring any of those exceptions into play.

I am conscious of the fact, as indeed I indicated when I

delivered judgment, that the Vietnam Veterans' Association has an ongoing role in the conduct of hearings by the Veterans' Review Board. It is to be hoped that all concerned will put this case behind them and get on with that important work. However, I do not think the fact that an unsuccessful litigant

costs to a person who has been unsuccessfully sued by such a	is a body pursuing a public function is a reason for denying
body. I respectfully agree with the comments of Burchett J in Australian Conservation Foundation v Forestry Commission
(1988) 81 ALR 166 at 171:

"If a body is set up to pursue causes, whrch its founders considered to be in the public interest ... by means including court proceedrngs against others, it does not follow that those proceeded against should be deprrved of the ordinary protection of a right to an order in respect of therr costa in the event the claims made agarnat them prove unfounded."

I shall therefore order that the applicants pay the first

respondent's costs of this proceeding, including reserved costs. Whether such an order for costs is to be enforced is a matter for the first applicant and cannot affect the exercise of the Court's discretion to make such an order.

I do not see any ground for not including the second applicant

in the costs order. He sought relief which he presumably considered would be of benefit to him, even though it was more limited than the very wide relief sought by the Vietnam Veterans1 Association.

I certify that this and the

preceding two (2) pages are a true copy of the reasons for judgment of his Honour

Mr Justice Heerey.

Counsel for the first and	MS C Ronalds
second applicants:
Solicitor for the first and	R L Whyburn & Associates
second applicants:
Counsel for the first respondent:	Mr J S Hilton SC with
MS K M Guilfoyle
Solicitor for the first	Australian Government
respondent:	Solicitor
Counsel for the third respondent:	Mr D Ryan
Solicitor for the third	Australian Government
respondent:	Solicitor
Dates of hearing:	27 and 28 June 1994