Luck v Secretary, Department of Human Services

1. The applicant pay the respondents' costs of and incidental to the appeal, including of and incidental to the applicant's interlocutory application of 23 October 2015. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 On 15 August 2016, the Court ordered that the Notice of Appeal of the applicant (Ms Luck) be dismissed. In the reasons for judgment also published on that day (Luck v Secretary, Department of Human Services (No 4) [2016] FCA 950), I noted (at [144]) that the outstanding issues relating to costs included the costs of Ms Luck's interlocutory application of 23 October 2015 and the costs otherwise incurred on the appeal. The orders made on 15 August 2016 provided an opportunity for the parties to file and serve any submissions as to the costs of the appeal. Failing the making of a submission by Ms Luck, the orders provided that Ms Luck pay the respondents' costs of and incidental to the appeal including of and incidental to Ms Luck's interlocutory application. 2 Ms Luck did file a submission on the question of the costs of the appeal. No submission has been made by any respondent. By her submission, Ms Luck sought that the determination of the question of costs be adjourned pending the commencement of an appeal of my judgment. The submission also stated that Ms Luck intended to seek orders in the foreshadowed appeal that the costs of the proceeding conducted before me be met by the respondents. 3 As I understand it, the essence of the submission made by Ms Luck is that I make no orders as to the costs of the proceeding before me and that that issue be addressed by a Full Court on the foreshadowed appeal. 4 The submission misunderstands that it is my function to determine, at first instance, who should pay the costs of the proceeding before me. 5 The principles governing the award of costs are well settled. Section 43 of the Federal Court of Australia Act 1976 (Cth) provides the Court with a largely unfettered discretion in relation to costs. That discretion must be exercised judicially. As Kenny, Murphy and Beach JJ said in Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [14]: … In the ordinary course costs will follow the event and if an appeal succeeds then the Court will order the respondent to pay the costs of the appeal and of the proceeding at first instance, unless there are special circumstances justifying some other order: Ritter v Godfrey [1920] 2 KB 47 ("Ritter") at 52-53 (Lord Sterndale MR) and 54 (Atkin LJ); Gladstone Park Shopping Centre Pty Ltd v Ross Wills and Others (1984) 6 FCR 496 ("Gladstone Park Shopping Centre") at 505 (Davies J); Ruddock v Vadarlis and Others (No 2) (2001) 115 FCR 229 at [11]-[16] (Black CJ and French J). 6 Ms Luck has not identified any special circumstances which would warrant an order that costs not follow the event. In those circumstances, I will order that Ms Luck pay the respondents' costs of and incidental to the appeal, including of and incidental to Ms Luck's interlocutory application of 23 October 2015. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.