Ehrke v Australian Building and Construction Commissioner

1. The applicant pay the first respondent's costs of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 On 6 March 2020, I dismissed a proceeding brought by the applicant: Ehrke v Australian Building and Construction Commissioner [2020] FCA 267. 2 The first respondent (the Commissioner) seeks an order that the applicant pay the Commissioner's costs of the proceeding. The applicant submits that there should be no order as to costs. 3 The applicant applied for a declaration that an Examination Notice issued under s 61 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act) was invalid, and other relief. 4 The Examination Notice required the applicant to attend before the Commissioner to answer questions relevant to an investigation. The applicant submitted that the Examination Notice was invalid because it did not contain enough detail to allow her to ascertain whether any questions she would be asked were relevant to the investigation. The Commissioner submitted that, on the proper construction of the BCI Act and the prescribed form, the Examination Notice contained all the information that was required to be provided and, in fact, contained more than was required. 5 I rejected the Commissioner's argument that the Examination Notice provided more information than was required to be provided. However, I rejected the applicant's argument that she could not judge whether any questions were relevant to the investigation on the basis that the relevance or otherwise of the questions could not be judged until they were known, and they would not be known until asked at the examination. Therefore, the application was premature. I also accepted the Commissioner's argument that the proper second respondent was the member of the Administrative Appeals Tribunal who issued the notice, rather than the Tribunal itself. 6 The applicant accepts that the proceeding is one in which the Court has jurisdiction under s 43(1) of the Federal Court of Australia Act 1976 (Cth) to award costs. However, she submits that there should be no order for costs against her for the following reasons: (1) The proceedings concerned a matter of public importance and the case advanced by the applicant was arguable. The effect of the judgment is to clarify the requirements of an examination notice and the conduct of compulsory examinations. The judgment will assist the Commissioner and the public in respect of future examination notices. This is of particular importance in circumstances where an examination is compulsory and negates important common law freedoms and privileges. (2) The Commissioner possessed particulars of its investigation which could have been included in the Examination Notice, and inclusion of those particulars may well have obviated the need for the proceeding. (3) The applicant enjoyed a measure of success in respect of its arguments concerning the level of detail of a suspected contravention required to be included in an examination notice. 7 The Commissioner submits that the application failed, and costs should follow the event. The Commissioner also submits that merely because a point has a public character and was arguable does not mean that the litigation is in the public interest. 8 In Oshlack v Richmond River Council (1998) 193 CLR 72, Gaudron and Gummow JJ held at [40] that there is no absolute rule that, in the absence of disentitling conduct, a successful party is to be compensated for costs by the unsuccessful party. Their Honours at [49] cited with apparent approval a statement by the primary judge that something more than mere categorisation of proceedings as public interest litigation is needed before a successful defendant should be denied costs. In deciding that there should be no order as to costs, the primary judge had taken into account that the plaintiff's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law, that he did not stand to gain from the litigation, that a significant number of members of the public shared the plaintiff's stance and that the challenge was arguable and resolved significant issues as to the interpretation and future administration of the relevant statutory provisions. Their Honours held that the primary judge had not taken into account any extraneous considerations. 9 The applicant accepts that mere categorisation of the proceedings as public interest litigation is not enough to deprive a successful party of a favourable costs order. There is no evidence that the applicant was motivated by anything other than her own interests in seeking to have the Examination Notice set aside. There is no evidence that the applicant sought to act in the public interest in bringing the proceeding, or that her stance was supported by other members of the public. It is true that determination of some of the issues in this case may have implications beyond the present case and may provide some guidance for the Commissioner and other recipients of examination notices, but any case requiring construction of statutory provisions may produce a public benefit through clarification of the law. In the circumstances, the "public interest" arguments raised by the applicant do not justify departure from the usual order as to costs. 10 While the applicant succeeded in respect of one of the two major issues in contention, that success did not ultimately assist her, and her application failed. I accept that it is open to consider costs according to the parties' relative success in relation to particular issues: see, for example, Cretazzo v Lombardi (1975) 13 SASR 4 at 12; Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272. However, the principal issue in the proceeding was whether the applicant demonstrated that the Examination Notice was invalid because it would not allow her to judge whether any questions asked at the examination were relevant. The issue as to whether the Examination Notice contained more information than was required was subsidiary. This is not a case in which significant additional costs could have been incurred in respect of the subsidiary issue. The usual position is that costs are not determined on an issue-by-issue basis: Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61 at [306]. The applicant's limited success is not sufficient to warrant departure from that position. 11 I do not consider that the fact that the Commissioner could have included more details in the Examination Notice affects the question of costs. The applicant brought her proceeding on the basis of the Examination Notice in the form in which it was issued and failed. 12 The appropriate order is that the applicant pay the Commissioner's costs of the proceedings. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.