Hanson v Burston

1. The applicant pay 75% of the costs of the respondent of and incidental to the interlocutory application dated 20 August 2021, including the costs of the submissions on costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 On 19 October 2022, I delivered judgment on an interlocutory application brought by the respondent: Hanson v Burston [2022] FCA 1234. These are the reasons for deciding the disputed question of costs arising from that application and judgment. 2 By his interlocutory application, Mr Burston asserted that: (a) this Court had no jurisdiction to determine whether, as alleged by the applicant, Ms Pauline Hanson, he contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) and no power to declare that he had done so (Jurisdictional Issue), therefore seeking summary judgment; (b) this Court had no jurisdiction with respect to some of the claims pleaded in the amended points of claim because they were not included in Ms Hanson's complaint to the Australian Human Rights Commission, as required by s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (Section 46PO(3) Issue), therefore seeking summary judgment of those parts of the claim; (c) there was no reasonable prospect of success in relation to the entire claim brought by Ms Hanson via her originating application and amended points of claim (Reasonable Prospects Issue), therefore seeking summary judgment. 3 The conclusion that I reached in the judgment was that: (a) this Court did have jurisdiction to determine whether Mr Burston contravened s 94(1) of the Sex Discrimination Act and therefore to grant declaratory relief to that effect; (b) this Court did not have jurisdiction to determine certain aspects of the claim brought because they were not included in Ms Hanson's terminated complaint to the Commission, so should be (and were) summarily dismissed; and (c) Ms Hanson's pleadings were otherwise sufficiently reasonably arguable, subject to certain claims being struck out and subject to the grant of leave to re-plead, as the test for summary judgment was not met. 4 The judgment concluded as follows: [153] While Mr Burston has not succeeded in obtaining summary judgment for all of Ms Hanson's case, he has achieved substantial success in obtaining summary judgment for key aspects and in requiring her to re-plead other substantial parts of her case. However, his argument as to jurisdiction, which always required determination, has failed. My preliminary view is that Ms Hanson should pay half of Mr Burston's costs of and incidental to the interlocutory application. However, I will instead hear from the parties on costs. [154] While these reasons articulate the aspects of the APOC that have been summarily dismissed or struck out, with leave to re-plead, there will be practical considerations as to how that should take place, and other paragraphs than those expressly identified may additionally or collaterally need to be changed as well. In those circumstances it is best that the parties confer and endeavour to reach an agreed position. 5 The parties each furnished written submissions on costs for determination on the papers: each in chief on 25 November 2022, and each in reply on 6 December 2022. Mr Burston seeks an order that Ms Hanson pay 75% of his costs, while Ms Hanson seeks either no order as to costs, or alternatively that she pay 25% of Mr Burston's costs. Neither side seeks multiple costs orders according to the success or failure on the various issues. 6 There is no real dispute as to the principles to be applied in a costs determination and no authority cited cries out for citation, although each side focussed on cases that favoured the approach that best suited the outcome they were seeking. In short, the discretion is broad and substantially unfettered, although to be determined judicially. While costs ordinarily follow the event, achieving fairness and justice in a particular case may warrant descending into the constituent parts of the conclusions reached and award costs instead upon the basis of degrees of success and failure by the parties. No more granular account of the nuances in the authorities is warranted, although each has been considered. 7 The substance of Mr Burston's argument is to point to the conclusions I reached at [153], reproduced above, accepting that fairness may dictate that the discretion as to costs may require some departure from it being exercised in a way that simply follows the event of some degree of success. However, he contends that there was, as I found, substantial success, and those aspects which failed should not overshadow that outcome, with the principal task being to determine costs based on the end result. That focus is said to justify him being awarded 75% of his costs as a fair reflection of his overall degree of success. 8 The substance of Ms Hanson's argument is to look at the proportion of the judgment spent on the various issues in terms of the number of paragraphs as a proxy for the proportion of preparation and hearing time involved. She submits that because Mr Burston wholly failed on the Jurisdictional Issue, succeeded in having three aspects of her claim summarily dismissed, wholly succeeded on the Section 46PO(3) Issue, and did not succeed in seeking summary judgment beyond that, it was in substance an evenly divided outcome, such that there should be no order as to costs. She argues that this is a fairer outcome than applying the traditional rule that costs follow the event. Alternatively, she submits that if the Court is of the view that she should pay some part of Mr Burston's costs, 25% more appropriately balances the mixed success that he achieved. 9 I do not consider that the outcome of the Jurisdictional Issue should have any marked impact on the question of costs. There was a live question in that regard which needed to be determined before the proceeding continued much further. The prior authority on the topic was mixed, but the issue was ultimately not very involved or complicated. The prior authority was the only aspect that made it more substantial than it appeared. However, the outcome on that issue does count to some degree in Ms Hanson's favour. 10 Nor do I attach a great deal of weight to the aspect directed to the summary dismissal of the entire proceeding, being the Reasonable Prospects Issue. It is not at all uncommon for an interlocutory application to seek that along with seeking a strike out or summary judgment of parts of a claim. However, it is a form of relief that should not be sought in a reflex way, so I do bring a degree of weight to that aspect in Ms Hanson's favour. 11 The most important part of the determination that was required, and which was properly brought in order that the matter not proceed to trial upon issues for which there was no jurisdiction, was the Section 46PO(3) Issue. That provision is a very important jurisdictional gateway for this sort of proceeding, and will often require determination well before trial, as it did in this case. It has had a substantial impact on the case going forward. I attach greatest weight to that aspect of the prior judgment and the determination required that underpinned it. It weighs substantially in Mr Burston's favour. 12 While my preliminary view was that Ms Hanson should pay 50% of Mr Burston's costs of an incidental to his interlocutory application, upon further reflection, I do not consider that this gives sufficient weight to the success he achieved on the most important issue. In my view, sufficient account for the aspects in which he failed is reflected in a 25% discount. Accordingly, I accede to Mr Burston's argument that a just outcome is that Ms Hanson be ordered to pay 75% of his costs of and incidental to the interlocutory application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.