Izzo v State of Victoria

1. The applicants pay the respondent's costs of the respondent's interlocutory application dated 13 March 2020, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 On 4 June 2020, I gave judgment on an interlocutory application brought by the respondent seeking strike out of parts of the second further amended statement of claim (the statement of claim) and an order for further and better particulars of certain allegations: Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770. In relation to the costs of the interlocutory application, I ordered that each party file a written submission of no more than two pages within 14 days, and that the issue of costs be determined on the papers. These reasons deal with the issue of costs. These reasons should be read together with the reasons dated 4 June 2020. 2 Each party has filed a written submission on costs. The positions of the parties are as follows: (a) The applicants submit that the appropriate order is that the costs of the interlocutory application be costs in the cause. Further or alternatively, they submit that the costs of the affidavit of Caitlin Ible affirmed on 16 March 2020 ought not be allowed. (b) The respondent seeks its costs of the interlocutory application. 3 The principles relating to the discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well established: see, eg, Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J. Usually, in the exercise of the discretion, it is ordered that costs follow the event. However, there may be situations where the event of success is contestable, by reference to how separate issues have been determined: see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] per Kiefel and Keane JJ, cited by French CJ, Kiefel, Nettle and Gordon JJ in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at [6]. 4 The applicants submit that the respondent sought to strike out parts of the statement of claim on 39 separate bases and succeeded on only 10 of those bases. It is also submitted that five of those bases were the same point, namely the "comparator" point. In relation to further particulars, the applicants submit that the respondent sought particulars on nine separate bases but succeeded on only five bases. In summary, the applicants submit that the respondent failed on more points than, or on at least as many points as, the points on which it succeeded. 5 In my view, contrary to the applicants' submissions, the respondent was substantially successful in its interlocutory application. The orders made by the Court on 4 June 2020 demonstrate that substantial parts of the statement of claim were struck out and that particulars were ordered in relation to further parts of the statement of claim. While it is true that the bases upon which those parts of the statement of claim were struck out were more limited than the bases argued by the respondent, it is nevertheless fair to say, in my view, that the respondent was substantially successful in its application. I do not consider it appropriate in the circumstances of this interlocutory application to apportion costs based on the outcome in relation to different parts of the statement of claim. 6 In relation to Ms Ible's affidavit, the applicants submit that the affidavit was largely irrelevant to the proper resolution of the matter and therefore the costs of the affidavit should not be allowed. In my view, the affidavit, which set out the procedural history of the matter, provided context for the interlocutory application. In these circumstances, I do not accept the submission that the costs of the affidavit should not be allowed. 7 For these reasons, I will make an order that the applicants pay the respondent's costs of the respondent's interlocutory application, as agreed or assessed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.