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[2002] FCA 1574
procedural. There be no order as to costs in either application (see [11]).
Bromet mounted judicial review challenges to two Air Force decisions; the Court dismissed both. The respondents asked for costs, relying mainly on an 8 August offer to remake a decision about the 'unsuitability report'. Finn J found the litigation was reasonably started, exposed maladministration and public-interest issues, and that the 8 August offer was limited because it did not address the suspension decision. Because the applicant's rejection of that offer was not unreasonable and the public interest favoured allowing the issues to be determined, the judge exercised his discretion to make no order as to costs.
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1,578 words · generated 20/08/2026
Flight Lieutenant Marcus Robert David Bromet brought two judicial review applications challenging decisions made by members of the Royal Australian Air Force, namely a suspension decision and an unsuitability report decision. Finn J dismissed both applications on 16 September 2002. After judgment, the respondents applied for costs. The respondents relied principally on a settlement-style offer made on 8 August 2002 in which they offered to make a fresh decision in relation to the unsuitability report. The applicant had rejected that offer. There was also an adjournment on 18 August 2002 caused by counsel's illness; the respondents sought an order for costs thrown away as a consequence of the adjournment, but Finn J considered that claim inappropriate (see [2]).
1 cited instrument linked from this judgment.
When reserved for later reasons, Finn J explained the exercise of his costs discretion. Although acknowledging the ordinary practice in the Federal Court of awarding costs to the successful party on a party-and-party basis (see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727, cited at [1]), he emphasised the breadth of the Court's discretion and particular considerations in administrative law. The judge accepted that the proceedings were reasonably instituted and that they exposed maladministration and other public-interest issues within the Air Force's internal administration (see [5], [10]). Because the respondents' 8 August offer addressed only the unsuitability report and left the suspension decision untouched, the judge concluded that the applicant's rejection of the offer was not unreasonable (see [9]). Balancing these factors, Finn J exercised his discretion to make no order as to costs (see [11]).
Three principal considerations underpin Finn J's decision:
Reasonableness of institution: Finn J concluded the applicant was entitled to bring judicial review proceedings. The litigation exposed poor administration and real issues about the framing, scope and suitability of Defence Instructions and procedures used by the Air Force (see [5]). Those considerations supported treating the litigation as reasonably instituted.
Scope and adequacy of the settlement offer: The respondents' 8 August 2002 offer was to make a fresh decision only in relation to the unsuitability report, leaving the suspension decision unaddressed (see [2], [9]). The judge accepted the broad proposition that maladministration should not permit an applicant to continue litigation in the face of a reasonable offer to settle without risk as to costs (see [8]); but he concluded the particular offer was not sufficiently comprehensive to render its rejection unreasonable.
Public interest in administrative review: Finn J emphasised that proceedings which clarify law or expose administrative defects may carry public benefit. He expressly referenced the line of authority cautioning against mechanically ordering costs against unsuccessful administrative litigants, notably Shelton v Repatriation Commission, and applied that principle to the present facts, finding likely public benefit from the matter being prosecuted to judgment (see [6], [10]).
On these bases the judge exercised his discretion against making a costs order. He also rejected a separate claim for costs thrown away due to the hearing adjournment, considering that order inappropriate (see [2]).
Before this decision: The Federal Court's ordinary practice has been to award costs to the successful party on a party-and-party basis, subject to the Court's broad discretionary powers under the Federal Court of Australia Act 1976 (Cth). Authorities such as Re Wilcox were cited as reflecting that ordinary practice (see [1]).
Shelton v Repatriation Commission (1999) 85 FCR 587 had articulated and emphasised the cautious approach courts should adopt in administrative law cases, because successful judicial review actions often clarify the law in a wider public interest. Finn J quoted that passage and treated the Shelton principle as an important comparator (see [6]).
After this decision: Finn J's decision is a practical application of the broader principles already present in the case law. It confirms three propositions for practitioners and courts dealing with costs in administrative law:
This decision thus reinforces the flexible, contextual approach to costs in public law litigation.
Quoted passages below use the paragraph numbering from Finn J's reasons.
Paragraph [5]: "The proceeding itself exposed not only poor administration in an area of the Royal Australian Air Force's internal working, it also exposed real issues about the frame, scope and present suitability in aspects of the regime of Defence Instructions that ought be addressed."
Plain English: The litigation revealed real problems in how the Air Force runs some internal processes and in the administrative rules themselves; these are matters that merit judicial scrutiny and possibly correction.
Paragraph [6]: The Shelton quotation: "Often, in administrative law, such an application as this … clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion give to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party."
Plain English: Courts should be careful about automatically penalising people who lose in public law cases with costs. Allowing review helps everyone, and the risk of having to pay costs should not unduly stop people from seeking review.
Paragraph [9]: "In the end, though, I am not satisfied that the applicant acted unreasonably in not accepting the 8 August 2002 offer even if at that stage it was motivated by the insistence on his part that the respondent's pay his costs to that date."
Plain English: The judge did not think the applicant's refusal of the offer was unreasonable, even if part of the reason was a desire for costs up to that point; the offer was limited and did not resolve all the applicant's complaints.
Paragraph [11]: "I will make no order as to costs."
Plain English: The judge decided that nobody should be ordered to pay the other's legal costs in these proceedings.
Cases with the following features are the kinds in which Finn J's reasoning will be most directly relevant:
In such fact patterns a court may be inclined to refuse a costs order against an unsuccessful applicant, provided the refusal to accept settlement can itself be shown to be reasonable in all the circumstances (see [5], [8], [9], [10]).
This judgment itself cites earlier authority (Re Wilcox; Shelton) and applies their principles; it does not record later judicial treatment of Finn J's decision. To understand how later courts have treated Bromet v Oddie, one would need to consult subsequent case law databases and later appellate or district-level decisions. Finn J's reasoning is, however, a clear illustration of the established discretionary approach to costs in administrative matters and the balancing of settlement-offer considerations against public-interest reasons for allowing litigation to proceed.
Finn J's reasons resolve the outcome for these applications, but some broader questions remain open for subsequent litigation and appellate clarification:
These remain practical and doctrinal issues for future courts to calibrate in the interplay between settlement incentives and the public interest in reviewability.
Disclaimer: This is general legal information explaining the court's reasoning in Bromet v Oddie [2002] FCA 1574 and is not legal advice. I can make mistakes. Before you act on, rely on, or use this analysis, get a qualified Australian lawyer to check it.
REASONS FOR JUDGMENT 1 In giving my decision in this matter on 16 September 2002 dismissing both applications I made no order as to costs, though I reserved the right of the respondents to make a costs application. I did indicate at the time that, notwithstanding the ordinary practice followed in this Court of awarding costs to the successful party on a party and party basis: see generally Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727; I would need to be satisfied that this was a proper case in which to adhere to that practice. 2 The respondent's subsequently applied for costs. The essence of their submission is that notwithstanding the criticisms made by me of the decision-making processes in this case and the maladministration revealed, a reasonable offer of compromise was made on 8 August 2002 (in the form of an offer to make a fresh decision in relation to the unsuitability report) after the respondents had made plain the bases upon which the various decisions impugned in this proceeding were said to have been taken. In consequence they claim their costs in their entirety, or else those following the offer of 8 August 2002. They also claim separately an order for costs thrown away in consequence of the adjournment of the hearing on 18 August 2002, that adjournment being occasioned by the illness of counsel. I should indicate immediately that I consider the latter order sought inappropriate in the circumstances. 3 The applicant opposes any costs order being made, emphasising the width of the discretion in relation to the award of costs. Reliance is placed, in particular, upon the decision of the Full Court in Shelton v Repatriation Commission (1999) 85 FCR 587 in which, an appeal having been made to this Court in an administrative matter, the Court refused to make a costs order after noting that the proceeding, though unsuccessful, was not unreasonably begun and did clarify the law in a wider interest than that of the applicant. The applicant's submission accentuates the treatment to which he was subjected in the decision-making process, the confusion that attended it, and the lack of an explanation given prior to the initiation of proceedings of the sources of power relied upon by the respondents. It equally is contended that the refusal of the 8 August offer was not unreasonable. It merely offered to make a fresh decision in relation to the unsuitability report decision with no proposal to pay the applicant's costs. He was within his rights to reject the offer in those circumstances. 4 The respondents in reply have sought to distinguish Shelton's case, principally on the grounds that it involved the construction of beneficial legislation; it resulted in a clarification of the law in a way that had a wider public benefit; and it was not a case in which the applicant had rejected a reasonable offer of settlement. 5 For my own part, but for the applicant's rejection of the 8 August 2002 offer, I would without hesitation have characterised this proceeding as one in which no order as to costs should be made. There can be no doubt the proceedings were reasonably instituted. Against the background of decision-making that can only be described as chameleon-like in character, Flight Lieutenant Bromet was quite entitled to resort to this Court in judicial review proceedings both to challenge the regularity of the course of decision-making to which he had been subjected and to ascertain the actual bases of the decisions made. The proceeding itself exposed not only poor administration in an area of the Royal Australian Air Force's internal working, it also exposed real issues about the frame, scope and present suitability in aspects of the regime of Defence Instructions that ought be addressed. And, as I indicated in my principal reasons, the proceeding exposed as well the need to review the procedures the Air Force has in place to monitor the progress of action being taken in matters such as gave rise to this proceeding. 6 In Shelton's case the Full Court made an observation which is peculiarly opposite to the present proceeding (at 590): "Often, in administrative law, such an application as this … clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion give to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party." 7 Notwithstanding that the applicant was unsuccessful in his challenges both to the suspension decision and to the unsuitability report decision, the case is one in which, but for any question raised by the 8 August offer, no costs order should be made. 8 The matter which concerns me is whether that offer and its rejection should alter what otherwise would be my view. I have already noted that the respondents rely on this offer as an important factor differentiating this proceeding from that in Shelton. And I accept the broad proposition they put that maladministration ought not allow an applicant to maintain proceedings in the face of a reasonable offer to settle without risk as to costs. 9 In the end, though, I am not satisfied that the applicant acted unreasonably in not accepting the 8 August offer even if at that stage it was motivated by the insistence on his part that the respondent's pay his costs to that date. I should indicate that while the evidence and the submissions reflect a direct concern with the payment of such costs, I am not in a position to find that this was the applicant's sole reason for rejecting the offer. Be this as it may, that offer was addressed to only one of the matters that was of concern to him. It left the suspension decision on foot and to that extent merely narrowed the scope of the dispute. In the circumstances, given the foundations of his challenges to both reports and the less than comprehensive scope of the offer, he was reasonably entitled to persist in his objections to both decisions made against him and, in particular, to their alleged lack of legal foundation. 10 The parties have raised other, lesser matters which they contend bear on how my discretion should be exercised. I have had regard to them. But I remained satisfied that the proper exercise of discretion in this matter is as I have foreshadowed. I would add that I consider there is likely to be a public benefit from this proceeding having been prosecuted to its end even if an immediate beneficiary of it will not be the applicant. 11 I will make no order as to costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Solicitor for the Respondent: Australian Government Solicitor
Bromet
Oddie
(1996) 141 ALR 727
(1999) 85 FCR 587
There be no order as to costs in either application (see [11]).