Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd

1. Set aside orders 1 - 4 made in the Court below on 30 June 2016 and in lieu thereof order that:
2. The Application be dismissed.
3. The Applicants pay the Respondent's costs of the trial as taxed or agreed.
4. Each party bear their own costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 In Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd [2016] FCAFC 153, we allowed the appeal but called for further submissions on the issue of the costs of the trial and the costs of the appeal. The case pursued on appeal was not substantively pursued at trial. Had it been pursued at trial, the appeal would have been unnecessary. The appellant has succeeded, but it would be unfair if the respondent were to bear the full expense of the process of forensic maturation under which the appellant's case successfully went. On the other hand, had the correct argument been raised substantively at trial, the respondent would have suffered an adverse costs order. In those circumstances, the appropriate orders are that the respondent should bear the costs of the trial (which would have been borne if the correct argument had been advanced by the appellant at trial), but there should be no costs of the appeal (which would not have been necessary on the same hypothesis). It is true that an argument is available on that basis that the appellant should pay the costs of the appeal, but the fact is that the appellant won the appeal, which deserves to be recognised. 2 This Court made orders on 11 November 2016 allowing the appeal but going no further. The following additional orders should now be made: