REASONS FOR JUDGMENT
1 On 13 April 2007 reasons were published in Bropho v State of Western Australia [2007] FCA 519. The Court then ordered that the application be dismissed. It further ordered that costs be reserved. The latter order was made for the purpose of enabling the parties to make submissions in relation to costs. Those submissions have now been received and these reasons address the issue of costs in the proceedings.
2 The applicant submits that:
The Court in its judgment at Part D, identified 12 Claims and Issues; subdivided into 37 sub-issues. The Court dealt with the evidence and arguments and made findings in relation to each of those. In respect of the 5th of those issues, the Court identified three sub-issues and made a finding in favour of the applicants in respect of two out of three of those sub-issues, at [443].
The Court in Part E, identified 5 Specific Factual Issues. In relation to the first of those issues, the Court identified two sub-issues. In relation to one of those sub-issues, the Court found in favour of the applicants, at [221].
It is within the capacity of a taxing officer to apportion a costs order to take into account the issues upon which each party was successful.
In the applicant's submission an appropriate costs order would be to the effect that -
(1) the respondents pay the applicant's costs in respect to the issues of -
(a) whether the Reserves Act resulted in the applicants not enjoying the right of equal treatment before Tribunals administering justice; and
(b) whether the Reserves Act was thereby inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth) (the RDA) and Art 5(d)(i) of International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, New York(the Convention); and
(c) whether Robert Bropho was an inhabitant of the Reserve;
(2) the applicants pay the respondents' costs in relation to the balance of the issues;
(3) the costs be taxed.
3 The respondents submit:
The matters identified by the applicant (par 4(1)) are not issues on which a costs order should be made against the respondents, or issues on which the applicant should be relieved of paying the respondents' costs.
The matters concerning the prima facie determination of equal treatment before tribunals administering justice (par 4(1)(a) and (b)) were not distinct or severable from the matter of justification as being reasonably appropriate and adapted and in the public interest, and on the basis of a special measure. The factual and legal questions raised by these matters all go to the question of whether there was unlawful discrimination, and it is artificial to regard a prima facie determination on one aspect of that overall question as a separate issue from the ultimate finding of no unlawful racial discrimination.
The matter of Robert Bropho's residence was not an 'issue' on which the applicant would have enjoyed a right to relief despite other conclusions made. It is a minor question in the sub-stratum of the totality of the determined facts.
In any case, the matters specified by the applicant did not occupy a considerable or discrete portion of the course of the trial. Further, the respondents did not improperly or unreasonably add to the cost of the litigation by contesting those matters.
4 The jurisdiction of the Federal Court to award costs is supported by s 43 of the Federal Court of Australia Act 1976 (Cth). Section 43(2) provides that except as provided by any other Act (which is not of relevance here) the award of costs is in the discretion of the Court or Judge. It therefore includes the power to look at issues run in a case differentially and to make an order otherwise than that the loser pays all costs: Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 282 at [5] per Allsop J. In R v Secretary of State for Transport; ex parte Factortame Ltd [1998] EWCA 2999 Lord Woolf (with whom Schiemann LJ and Robert Walker LJ agreed) said:
'…The practice of the courts does evolve, and in recent times there has been a greater emphasis on recognising that the raising of issues in the course of complex litigation, of which this case can be considered as an example, can increase the costs of that litigation. It is therefore important that the parties should pay careful attention to the merits, not only of the whole case but to the issues which arise in the course of a case. In complex litigation, where issues are raised on which a party is unsuccessful, the court should, when appropriate, make orders for costs which reflect the fact that, whereas a party may generally be successful, in regard to some of those issues that party has been unsuccessful. Furthermore, if the way in which an issue is conducted or argued has the result of increasing the costs of the litigation, and the court finds that it was unnecessary for the party to develop the issue in that way, that again can be reflected in a special order for costs.'
These views of the English Court of Appeal have been specifically approved by Hely J in Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1699 at [7] and were relied upon by Allsop J in Evans Deakin [2003] FCA 282 at [5].
5 An 'issue' for these purposes means 'that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief': Howell v Dering [1915] 1 KB 54 at 62-63 per Buckley LJ.
6 Further, an order concerning the costs of a particular issue should be made only where the issue is distinct and severable from the other issues in contest between the parties and the issue occupied a considerable and identifiable part of the trial: Inn Leisure Industries Pty Ltd (prov liq appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172 at 174 per French J; or the respondent, in contesting the issue, has conducted the litigation improperly or unreasonably, in a manner that has increased the cost of the litigation: Evans Deakin [2003] FCA 282 at [5].
7 In my view the respondents' submissions correctly state the circumstances in which the issues identified by the applicant in her above submissions do not qualify within these tests.
8 This is not an instance where it is said that the litigation was conducted improperly or unreasonably in a manner that has increased the cost of the litigation.
9 It is a case where the matters concerning prima facie determination of equal treatment before tribunals administering justice were not distinct and severable because they were linked to the question of whether they were reasonably appropriate and adapted in the public interest and the question of whether there was a special measure, which applied across the board in relation to such issues. I agree that the matter of Robert Bropho's residence was not an issue in the required sense and was a relatively minor question in the sub-stratum.
10 In my view it follows that the discretion of the Court in relation to costs must inevitably be exercised in favour of an order that costs follow the event, namely, that the applicant pay the respondents' costs of the application.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.
[2]
Solicitor for the Respondents: State Solicitor's Office