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
- AGLC
- Vietnam Veterans Association of New South Wales Branch Inc v Gallagher, J.P. [1994] FCA 600
- Case
- [1994] FCA 600
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicants were entitled to an order for costs, and if so, the appropriate basis for such an order. The applicants argued that they should not be required to pay the costs of the proceedings due to the public interest nature of their case and the potential deterrence effect on similar cases in the future. The first respondent, John Patrick Gallagher, contended that the applicants should bear the costs as they were unsuccessful in their application for judicial review.
The court considered the principle that costs generally follow the event, meaning that the unsuccessful party typically pays the costs of the successful party. However, the court also recognised that there are exceptions to this principle, such as when the defendant brought about the litigation, acted wrongfully, or engaged in conduct that caused unnecessary litigation and expense. The court found that none of these exceptions applied to the first respondent in this case. The court emphasised that the Vietnam Veterans' Association, despite its public function, should not be exempt from the usual rule regarding costs, as it was an unsuccessful litigant. The court also noted that the second applicant, Geoffrey Davis, was not exempt from the costs order as he had also sought relief in the proceedings.
The court ultimately decided that the applicants should pay the costs of the first respondent, including reserved costs. The court acknowledged the public interest nature of the applicants' case but held that this did not preclude the usual principle that costs follow the event. The court also noted that the applicants had an ongoing role in the conduct of hearings by the Veterans' Review Board and hoped that all parties could move forward with their work.
The final orders of the court were that the applicants pay the first respondent's costs of the proceeding, including reserved costs. The court did not see any reason to exclude the second applicant from this costs order.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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