White v Woodward (Costs)

In the Federal Circuit and Family Court of Australia, the plaintiff sought a non-party costs order against the defendant. The case arose from a wholly unsuccessful trial where the plaintiff was found to have made false and misleading statements. The plaintiff argued that the defendant, who was in a relationship with a critical witness, should contribute to the costs due to the witness's involvement in the litigation. The court needed to determine whether the principles in Knight v FP Special Assets (1992) 174 CLR applied, which allow for a non-party costs order when a non-party has played an active role in the litigation or has an interest in its outcome. The court examined whether there was evidence that the critical witness had actively participated in the litigation or had an interest in the subject matter.

The court found that there was no evidence to suggest the witness had played an active role in the litigation. The witness had provided testimony but did not engage in any conduct that would warrant a costs order. Furthermore, there was no evidence that the witness had an interest in the outcome of the litigation, such as a financial or personal stake in the proceedings. The court concluded that the principles in Knight did not apply in this case because the critical witness did not meet the criteria for a non-party costs order. The application was dismissed as the plaintiff had not demonstrated that the defendant had any involvement in the litigation beyond the relationship with the witness.

The court's reasoning was based on the absence of active participation or interest by the critical witness in the litigation. The court emphasised that for a non-party costs order to be granted, there must be clear evidence of the non-party's involvement in the litigation or their interest in its outcome. Since neither condition was met in this case, the application for costs against the defendant was unsuccessful. The court ordered that the plaintiff bear their own costs.