Procedure - Costs - Jurisdiction - Persons not parties to proceedings - Persons acting as amici curiae - Power to award costs against an amicus curiae - Entitlement of an amicus curiae to costs - Whether applicant for judicial review entitled to costs against Attorney-General acting as amicus curiae where no proper contradictor in the proceedings - Whether Attorney-General entitled to the costs of the costs application.

Rushby v Roberts [1983] 1 NSWLR 350, considered.

Re Medical Assessment Panel; ex parte Symons [2003] WASC 154; (2003) 27 WAR 242; Attorney-General (Western Australia) v Marquet [2003] HCA 67; (2003) 217 CLR 545, referred to.

First Respondent: (Submitted to the Court's jurisdiction)

Second Respondent: (Submitted to the Court's jurisdiction)

Third Respondent: (Submitted to the Court's jurisdiction)

Attorney-General as amicus curiae Director of Public Prosecutions

Judgment Number: [2010] TASSC 52

SOUTHERN CROSS TELEVISION (TNT 9) PTY LTD (No 2)

1 The applicant ("FT") applied for judicial review of a decision of the Ombudsman made following a review carried out pursuant to the Freedom of Information Act 1991 ("the Act"). The Hon Kim Booth MHA had applied to FT for information relating to commercial arrangements between it and Southern Cross Television ("TNT") relating to the "Going Bush" television program. Certain information was released with some material deleted. This was claimed to be exempt on the basis that it fell within ss31 and 32 of the Act, being information of a business, commercial or financial nature that would be likely to expose TNT or the agency to competitive disadvantage. Mr Booth requested an internal review of that decision which was upheld. In May 2009, Mr Booth applied to the Ombudsman for a review. On 10 March 2010, the Ombudsman concluded that none of the information at issue was exempt from release and that it should be released to Mr Booth in response to his request.

2 Both FT and TNT made submissions to the Ombudsman upon his review, as did Mr Booth. However, in the application for judicial review, TNT and Mr Booth each filed a notice submitting to any order which the Court or a judge may make upon the application. Quite properly, the Ombudsman had done likewise. When the matter came on for hearing, counsel sought leave to appear for the Attorney-General as amicus curiae. In the absence of a proper contradictor, and with the consent of the applicant, I granted that leave.

3 The grounds upon which the review were sought centred on the construction of ss31 and 32 of the Act. In particular, the correct meaning of the term "competitive disadvantage" as it appeared in both of those sections was squarely raised in that FT alleged that the Ombudsman had completely misconstrued the concept. On 1 July 2010 the Act was repealed and effectively replaced by the Right to Information Act 2009. However ss31 and 32 were reproduced in almost identical terms in the form of ss37 and 38.

4 On 27 August 2010 I granted the application for review, set aside the Ombudsman's determination, and remitted the matter for further consideration in accordance with my reasons; Forestry Tasmania v Ombudsman [2010] TASSC 39. Counsel who then appeared for the applicant sought costs from the amicus, whose counsel asked that the application for costs be adjourned so that instructions could be sought and the matter considered. Later, the applicant sought to have the costs argument re-listed and it pursued its costs of the review from the amicu_s_, to whom in these reasons I will simply refer to as "the Attorney".

5 For the purposes of determining this costs application, I was provided with material relevant to the position of the Attorney prior to leave being sought to appear as amicus. The matter was before the Associate Judge for directions before it was set down for hearing. Apparently the Attorney, who had become aware of the situation in which it was unlikely there was to be a contradictor, appeared by counsel and sought an opportunity to consider her position. Notice was then given to FT that the Attorney wished to appear as amicus. Clarification was sought as to the matters about which the Attorney wished to be heard, or at least the stance which the Attorney would take.

6 On the day before the hearing, FT's solicitor was advised that:

•

The Attorney considered the proper construction of the phrase "competitive disadvantage" to be an issue of importance beyond the confines of the present litigation, and the Attorney sought to assist the Court in determining the true meaning of that phrase.

•

The Attorney had no position on what meaning should be attributed to it; that is, that no one meaning would be advocated in preference to another.

•

The Attorney would seek to assist the Court by pointing out that it ought only receive evidence as to the meaning of the phrase if satisfied it should bear a meaning beyond the ordinary natural meaning of the words.

•

Additionally, the Court might consider that part of the evidence is not admissible in any event, but that it was not the role of the amicus to contend that the evidence was or was not admissible, rather to point out any relevant issue concerning the reception of evidence.

•

The Court would be invited to consider whether the reasons of the Ombudsman displayed the errors which the applicant asserted.

7 From my perspective, counsel for the Attorney did not exceed his brief as advised to FT's solicitors, and FT did not really argue to the contrary. FT submits, whilst expressly disavowing any suggestion of impropriety or untoward conduct, that the Attorney in fact contradicted every argument which FT put on the substantive application, which stance included an opposition to the admissibility of evidence relating to a point of statutory construction. It submits that the Attorney essentially argued in support of the Ombudsman's reasons, and that the submissions were so wide ranging and comprehensive that for all intents and purposes she should be treated as having intervened as a party.

8 The Judicial Review Act 2000, s39, provides as follows:

"39 Intervention by Attorney-General

(1) The Attorney-General may, on behalf of the Crown, intervene in a proceeding before the Court under this Act.

(2) If the Attorney-General intervenes in a proceeding -

(a) the Attorney-General is taken to be a party to the proceeding; and

(b) the Court may, in the proceeding, make such order as to costs against the Crown as the Court considers appropriate."

9 FT submits that given the stance which the Attorney took, it would have been more appropriate for her to have exercised the absolute right to intervene given by s39, in which event the specific costs power under s39(2)(b) would have been applicable.

10 In National Australia Bank v Hokit Pty Ltd (1996) 39 NSWLR 377 at 380, Mahoney P (Waddell A-JA agreeing) treated the involvement of an amicus curiae as a form of intervention. Assuming that strictly speaking this is correct, ordinarily the terms "intervener" and "amicus curiae" are used to describe different concepts. In United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 500, Davies, Wilcox and Gummow JJ at 534, having noted the power of a court to hear an amicus curiae went on to distinguish the position of such a person from that of an intervener. At 534 - 538 their Honours undertook a detailed analysis of the respective roles. I will need to say a little more about this joint judgment shortly.

11 In Re Medical Assessment Panel; ex parte Symons [2003] WASC 154; (2003) 27 WAR 242, E M Heenan J dealt with an application by the Attorney-General to appear as amicus, but it was indicated in argument that the Attorney would seek to adduce evidence and raise a new substantive issue. At 249 [17] his Honour said (omitting references):

"It has long been recognised that the Attorney-General may intervene in proceedings before court, even civil proceedings between private parties, in order to advance or to protect some public right or interest: ...This appears to be an application of the principle that the Attorney-General, alone, may bring or defend an action involving a public right or remedy, a public nuisance or a breach of public statutory interests: ... However, where no public right, interest or remedy is concerned the Attorney-General has no right of action ex officio nor any right to intervene in litigation between parties: ... A person accepted as an intervener becomes a party to the proceedings with all the privileges, and liabilities, of a party. Hence an intervener can appeal, tender evidence and participate fully in all aspects of the argument: ...".

12 At 249 [18] his Honour went on to detail the role of an amicus curiae as follows (again omitting references):

"By contrast, the role of an amicus curiae is markedly different. The amicus curiae does not have any rights or interests affected by the litigation which would be sufficient for the amicus to be joined as a party or, if the Attorney-General, which would justify intervention. The role of the amicu_s_, as his name suggests, is to assist the court by ensuring that the court is properly informed of matters which should be taken into account in reaching its decision and this may well be of assistance to the court where the litigation involves an important question of law affecting persons other than the parties, especially disadvantaged persons. It is often a convenient course to allow an address by an amicus curiae where one of the parties to the litigation or appeal is unable or unwilling to arrange for legal representation, or where they may be no contradictor to ensure that opposing arguments are brought to the attention of the court: Dobree v Hoffman (1996) 18 WAR 36. However, an amicus curiae does not become a party to the proceedings and may not appeal ... As there is no right of appearance it is entirely for the court to decide whether or not an amicus curiae should be heard and, if so, to what extent and on what aspects of the case ...".

13 His Honour went on to note the comparison of the respective roles of an intervener and an amicus curiae undertaken by the Full Court of the Federal Court in United States Tobacco Company v Minister for Consumer Affairs, to which I have referred above.

The power to award costs for and against an amicus

14 So far I have detailed the applicant's argument that the Attorney pay its costs of the substantive application. At this point, I note that the Attorney has applied for the costs of this costs application in the event that the applicant fails in its bid for costs. Accordingly, both the entitlement to, and the liability of, an amicus for costs need to be explored.

15 The Supreme Court Civil Procedure Act 1932, s12(1), provides as follows:

"(1) Subject to the provisions of this Act and the Rules of Court, and to the express provisions of any special statute which is not expressly or impliedly repealed by this Act, the Court and every judge thereof, whether sitting in court or in chambers, shall have jurisdiction to award costs in all causes and matters whatsoever (including proceedings for, or on, or in connection with an order of review under the Judicial Review Act 2000 or a writ of habeas corpus and causes and matters dismissed for want of jurisdiction) instituted in the Court or brought before the Court or a judge thereof by or against any party or person, including the Attorney-General and any body politic."

16 Counsel for the Attorney did not argue that this section did not empower the Court to make an order against an amicus, nor did counsel for the applicant argue that an order could not be made in the Attorney's favour for the costs of this costs application. The provision specifically gives the power to the Court, or a judge, jurisdiction to award costs "by or against any party or person, including the Attorney-General ...". It is clear that the presence of such words is taken to convey a wide jurisdiction and that the power can be exercised against non-parties: Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965. Even in the absence of specific language which suggests that orders may be made against persons other than non-parties, the jurisdiction has been construed as a wide one permitting such orders: Knight v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178.

17 However, there are suggestions, at least in the texts, that notwithstanding the width of such jurisdictional provisions, there are principles which restrict the power to award costs for and against amici. Ostensibly, that proposition has some attraction to it, given the status and role of an amicus, but as will be seen the situation is not entirely clear. First, in Quick on Costs, Loose-leaf ed, LBC, Vol 2, par4.4110, it is said that no order for costs can be made in favour of the amicus curiae. Rushby v Roberts [1983] 1 NSWLR 350 is cited as the authority for that proposition. In that case, the Court of Appeal was dealing with an appeal in relation to orders made in respect of the custody and guardianship of a child. Street CJ made observations on the need for a more liberal approach to the joinder of parties in order to give full effect to its jurisdictional responsibility. Hutley JA appeared to take a more cautious approach to admitting "as parties merely helpful persons". (The other member of the court, Mahoney JA, did not comment on this aspect.)

18 As part of his Honour's discussion, Street CJ referred to the practice of permitting intervention by the Registrar General in real property disputes involving Lands Titles Office practice. At 354, the page cited in Quick as the source of the proposition, his Honour said:

"It is little comfort to the parties, in such a case, to permit or invite the Registrar General to appear as amicus curiae: one or both of the parties must bear the costs burden of the consequent prolongation of the hearing."

19 The position of an amicus curiae is dealt with in Halsbury's Laws of Australia, LexisNexis, Practice and Procedure 325 at 1365. There is discussion of a number of issues relating to "intervention as an amicus curiae". It says that an amicus curiae is not liable for costs, citing United States Tobacco Co v Minister for Consumer Affairs at 535 - 539 as authority for the proposition. Neither I, nor counsel involved in this case, could find anything in that case to the effect asserted.

20 On the other hand, the power to award costs against an amicus was explicitly recognised in National Australia Bank v Hokit Pty Ltd (above). When discussing the basis upon which intervention might be permitted (in that case as an amicus curiae) at 382 Mahony P said:

"The legal costs of and arising from an intervention may be substantial. In the present case, they may be so: the interests before the Court have been represented in this appeal by three senior and three junior counsel and by their respective solicitors. The Court must consider whether the benefit of intervention will justify the cost of, for example, an extra day's proceedings. Such matters may lead the Court to require that the intervener pay some or all of the extra costs involved."

21 In the High Court, in Levy v State of Victoria (1997) 189 CLR 579, Brennan CJ discussed the position of various persons who had wished to intervene and who had wished to make submissions as amici. At 604 - 605 his Honour said:

"It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected."

Nothing was said as to the power to order that the costs of any party be paid by an amicus.

22 As pointed out by Kenny J (writing extra-judicially) in "Interveners and amici curiae in the High Court" [1997] Fed J Schol 1, the potential of an amicus paying the costs of parties was raised in the special leave application in Superclinics (Australia) Pty Ltd v CES [1996] HCA Trans 357. Two organisations applied to the High Court to be heard as amici curiae, but alternatively as interveners. In the course of submissions on behalf of the "proposed interveners", Brennan CJ sought clarification as to whether "it is amicus curiae rather than intervention?" "[I]f intervening, then there is all the status of the parties to be considered ... The question of costs and liability for them". That may suggest that his Honour was of the view that no question of costs would arise if the status sought was that of amici curiae, but the point was not further clarified.

23 If that be the correct interpretation of Brennan CJ's views, there appear to be contrary ones. Again, as noted by Kenny J in the article cited above, the point was further raised in argument in the appeal in Project Blue Sky Inc v Australian Broadcasting Commission: see [1997] HCA Trans 302. Eleven bodies and individuals, represented by the one counsel, sought leave to appear as amici curiae. The application and any submissions were deferred until the parties had been heard, at which time both material offered and submissions were received. Counsel for the amici advised the court that he did not seek costs if he "succeeded" and urged the court not to exercise any discretion against his clients if he did not. Without demur on the part of the Court, he accepted that an order for costs against him would be in the discretion of the court, but submitted that if there was an such an order, it should be limited to the additional costs occasioned by dealing with his submissions. Ultimately there was no order in relation to the costs "of the interveners": [1998] HCA 28; (1998) 194 CLR 355 at 393. There were no "interveners" so-called; only the amici.

24 More recently, in Attorney-General (Western Australia) v Marquet [2003] HCA 67; (2003) 217 CLR 545, a case involving electoral legislation, a group of interested organisations and individuals were heard as amici in the applications for special leave to appeal and the appeals, which were heard together. In each matter leave was granted but the appeals were dismissed. The majority held that there should be no order for costs, the respondent in each case having submitted to the jurisdiction of the court, and that the amici should bear their own costs. Kirby J dissented as to the result. His Honour made some observations as to costs orders in relation to amici. At [217] - [219] his Honour said:

"The amici's costs should be paid

[217] A contested claim for costs: The applicants are therefore entitled to succeed in this Court. The amici applied, whatever the outcome, for an order for costs in their favour. In my view that application succeeds.

[218] Subject to valid legislation providing otherwise, the costs of proceedings in this Court are in the discretion of the Court, as an incident to the Court's discharge of its constitutional function . No particular legislation governs the provision of costs in the present case. The applicants opposed an order for costs in favour of the amici. They pointed out that, ordinarily, interveners and those in a like position do not secure orders in favour of their costs. They normally participate in proceedings at their own risk and expense. The applicants argued that the amici were substantial organisations or individuals, with large interests in the outcome that they were entitled to pursue, but without demonstrated financial needs such as individual citizens caught up in constitutional litigation sometimes have. ...

[219] Contradictors' costs should be paid: The applicants' arguments are without merit. The amici were necessary participants in these proceedings. By their submissions, they helped crystallise the competing contentions. At stake were constitutional issues transcending the interests of private litigants. Although, in the result, in my view, the amici fail, it is difficult to see how the proceedings could have been conducted without them. The Court might have been forced to require the appointment of a contradictor. In such circumstances, the costs of that person would have had to be borne by the State, the constitutional law of which was in question."

25 In terms of the existence of a power to award costs for or against an amicus, it seems to me that the jurisdiction afforded by the Supreme Court Civil Procedure Act, s12, is wide enough to cover the situation. There is no authoritative and binding statement of principle to the effect that such costs cannot be awarded, at least in the face of such a provision. It might be thought that if leave were granted for an amicus to make submissions other than in writing, and the conduct of the amicus became such that it appeared the role being played was more properly that of an intervener so-called, then a court would revisit the issue of leave and the conditions upon the person or body who was appearing. However the role of an amicus has expanded over recent decades and it is not unknown for amici to take strongly partisan positions, see for example Superclinics Australia Pty Ltd v CES (above), and the discussion by Kenny J in the article which I have cited. In any event, I am prepared to hold that s12 of the Act affords the jurisdiction to award costs for and against an amicus curiae.

26 In this case the Attorney sought leave to appear as amicus because there was no contradictor willing or properly able to participate in the hearing. That fact alone would bear great weight. While the submissions made traversed a very substantial part of the applicant's submissions, the amicus did not, as I have noted, go beyond what was foreshadowed to the applicant before the application for leave was made, and consented to. Unlike how Kirby J saw things in the Marquet case, it is possible to see how the case could have been conducted without the Attorney's participation. No doubt senior counsel for the applicant would have complied with his obligations to the Court were the matter effectively heard ex parte, but the submissions of the amicus significantly greatly assisted in the crystalisation of the issues. I was properly made aware of the arguments which were open against the applicant. In those circumstances, the order sought should not be made.

27 As I have noted, the applicant applied for costs against the Attorney when judgment was delivered, but the application was adjourned upon the request of counsel for the Attorney. Judgment in the substantive application was delivered on 27 August 2010. On 1 September 2010, the Attorney's solicitor wrote to the applicant's solicitor advising that the application was opposed, and noting several things which would be brought to the Court's attention in the event that the application for costs was pursued. Those included that:

•

the Attorney-General sought leave to appear as amicus and did not exercise the power to intervene;

•

the position which the Attorney-General intended to take was made plain beforehand and was not departed from during the course of the hearing;

•

the Court gave leave to appear without opposition;

•

counsel brought to the Court's attention a number of authorities, one of which I referred to in my reasons as to the admissibility of the evidence.

28 The letter concluded by saying that in the event that the applicant pursued its application for costs and was unsuccessful, the Attorney would invite the Court to order that Forestry Tasmania pay the Attorney's costs of resisting that application, and a copy of the letter would be tendered.

29 It is true that the hearing in relation to the costs application, further to and apart from the occasion when judgment was handed down, was as a result of an application on behalf of the Attorney's counsel. However, I do not consider it any answer to this application, to say that it could have been dealt with on the day on which judgment was handed down. Very little advance notice was given of the applicant's intention to seek costs against the Attorney, and I see no reason why the Attorney's counsel was not entitled to seek instructions as to his client's attitude and to prepare argument.

30 In many cases, the costs of arguments as to costs, even where those arguments take place on days other than the day on which the judgment is handed down, are governed by the orders which are made in the substantive proceedings. But that will depend on the nature and number of applications made. There is nothing at all to suggest that a costs application may not of itself be made in such circumstances so as to constitute "an event", so that separate costs considerations apply to it, and costs should follow that event: see for instance Latrobe Council v Williams [2008] TASSC 56.

31 In this case, the application for costs against the Attorney was without any merit, and I do not think it appropriate for the Attorney to have to bear the costs of that unsuccessful application made against her. Costs should follow the event. There will be an order that the applicant pay the taxed costs of the Attorney-General in relation to this application for costs and I certify for counsel.