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[1995] FCA 109
Federal Court of Australia
1995-02-21
Spender J
Original judgment source is linked above.
This is a remaining question, being one of costs, about one aspect of litigation between O'Keeffe Nominees Pty Limited ('O'Keeffe Nominees') and B.P. Australia Limited ('BP'). In this litigation the Trade Practices Commission by notice of motion sought to intervene pursuant to s. 163A of the Trade Practices Act 1974 ('the Act'). On 11 September 1992 the court declared that the Trade Practices Commission was entitled to intervene in the principal proceedings and on that day ordered the costs of the motion by the Commission be reserved. The reason for judgment for those conclusions are reported: (1992) 38 FCR 85. Subsequently, BP filed a notice of motion seeking leave to appeal from these orders. On 17 November 1992 the application for leave to appeal was adjourned to a date to be fixed and the court ordered that BP pay the Trade Practices Commission's costs of that day and the costs of the motion otherwise be reserved. On 11 December 1992 the court ordered that the application in the principal proceedings be dismissed and that there be no order as to the costs of the Trade Practices Commission in those proceedings. The court on that day directed written submissions on the question of costs reserved in the Commission's motion to intervene. It is apparent that the order that there be no order as to costs was one of general application, but that the costs reserved on 11 September 1992 in respect of the motion for intervention was not subject to that general order but was to be the subject of further submissions. The dismissal of the principal proceedings was in consequence of a settlement between O'Keeffe Nominees and BP; the Commission did not seek to proceed independently in the face of the agreement between O'Keeffe Nominees and BP. No appeal has been lodged from the order that there be no order as to the costs of the Trade Practices Commission in the principal proceedings. The submissions on behalf of the Commission concerning the costs of its motion to intervene rely principally on the contention that BP chose to challenge the Commission's entitlement to intervene and was unsuccessful. It was submitted that as an intervener the Commission became a party to the proceedings with all the privileges of a party and that no reason exists for departing from the ordinary rule that costs should follow the event. Reference was made to United States Tobacco Company v. Minister for Consumer Affairs (1988) 20 F.C.R. 520 where, at 534, the Court said: "An intervener...becomes a party to the proceedings with the benefits and burdens of that status." Section 163A(2) of the Act permits the Minister to "institute a proceeding in the Court under (that) section" and "intervene in any proceeding instituted in the Court under (the) section...in which a party is seeking the making of a declaration" in relation to "the operation or effect of any provision of (the) Act other than Division 2, 2A or 3 of Part V or in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under (the) Act." By s. 163A(3), the Commission is not entitled to institute a proceeding under that section but may intervene in a proceeding where a party is seeking, inter alios, the making of a declaration of a kind just referred to. The Act does not contain any express reference to the question of costs. In particular, there is no express provision in that section, or indeed anywhere else, concerning the costs of the Minister or of the Commission as intervener. Section 43(1) of the Federal Court of Australia Act 1976 provides: " Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. " Section 43(2) provides: " Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. " In Hughes v. West Australian Cricket Association (Inc.) (1986) ATPR 40,748, Toohey J said, at p. 48,136: " Subsection 43(2) of the Federal Court of Australia Act 1976 vests the award of costs 'in the discretion of the Court or Judge'. The Federal Court Rules do not purport to qualify that discretion. The only rule to which reference is necessary is O. 62 r. 15 whereby, when costs are reserved, those costs follow the event 'unless the Court or a Judge otherwise orders'. The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p. 12. " It seems clear that the "success" which is referred to is directed to success in the principal proceedings. As Gummow J noted in N.S.W. Dairy Corporation v. Murray Goulburn Co-operative Ltd(1989) 86 ALR 549; (1989) ATPR 46,049, "the event" can be considered as the commercial result, so that a successful applicant may recover all his costs where the objective sought by litigation is achieved, even though the applicant does not succeed on every issue in the litigation. It was submitted on behalf of BP that there is no power in the court to award the Commission the costs it seeks in relation to its motion to intervene. It was submitted that the broad power in s. 43 to award costs affects parties to proceedings and that it does not affect an intervener. BP contended that the nature or character of intervention is an elective process of coming between parties who otherwise take the usual risks of success or failure with the attendant exposure to costs. In this case, s. 163A(1) and (3) of the Act makes plain that the Commission may not itself seek relief. Its capacity to intervene depends on a claimant party seeking a specific type of relief defined in s. 163A(3). BP submitted that, by becoming an intervener, the Trade Practices Commission does not become a party but rather is given the opportunity in the proceedings to advance arguments and perhaps evidence reflecting the public interests, which statutorily it is charged with administering or representing. Where the Crown becomes a proper party to proceedings, it is established in Latoudis v. Casey (1990) 170 CLR 534, the Crown is liable in costs. It was submitted that where the Crown, reflecting the public interest, is in a subsidiary position as in an elective intervention, it is not so subject. Reliance was placed on Attorney-General of Queensland v. Holland (1912) 15 CLR 46. In that case, the Matrimonial Causes Jurisdiction Act 1864 (Qld) gave the Attorney-General a right to intervene in certain circumstances. The Act provided: " The Court on the hearing of any suit or on the hearing of any appeal may make such order as to costs as to the Court may seem just. " Griffith CJ and Barton J (Isaacs J dissenting) held that the Attorney-General, intervening, is not liable to pay or entitled to receive costs. Griffith CJ said, at 49: " In 1865 the rule that the Crown neither pays nor receives costs was generally accepted and recognised, although it might be excluded by necessary implication. As Lord Campbell CJ had said in 1859, in Moore v. Smith 1 E. & E. 597; 28 L.J.M.C. 126, if it is clear that the legislature when authorizing an award of costs meant to include every case, whether the Crown were interested or not, the Crown by giving assent to such legislation is bound. " In Gow v. Gow (1969) 14 FLR 433, Toose J distinguished Attorney-General (Qld) v. Holland, saying that it was based on the Court's interpretation of the 1864 Act, (passed in March 1865), construed according to the intention of the legislature of that day. His Honour, having referred to the Court of Appeal decisions, Higgins v. King's Proctor and King's Proctor v. Carter [1910] P. 151, and to s. 82 of the Matrimonial Causes Act 1959-1966 which provided that "a person intervening...shall be deemed to be a party...with all the rights, duties and liabilities of a party", concluded that the general discretion contained in s. 125 of that Act applied to interventions. Further, reliance is placed by BP on s. 78A(2) of the Judiciary Act 1903, it being said that in the absence of that subsection, in the case of pure intervention by Attorneys-General of the Crown, no costs orders could have been made against them. Order 71(1) of the High Court Rules (which relevantly has always existed in its current form) provides: " Subject to the provisions of any law of the Commonwealth and to these Rules, the costs of and incidental to all proceedings in the Court and in Chambers, including the administration of estates and trusts, are in the discretion of the Court or a Justice. " As was noted in Australia Postal Commission v. Deo 2 (1986) 69 ALR 125 at 126, s. 78A(2) was introduced to protect litigants from having to pay the increased costs as a result of intervention by Attorneys-General. It was submitted on behalf of the Commission that costs orders made in cases in which Attorneys-General have intervened under s. 78A of the Judiciary Act, which section contains specific provision for the making of costs orders against the Commonwealth or the State, do not illuminate the present issue. Section 78A(2) provides that where an Attorney-General of the Commonwealth of Australia intervenes in proceedings in a court under that section, the court may make such order as to costs against the Commonwealth or the State as the case may be as the court thinks fit. In my opinion, where there is intervention by an Attorney-General under that section, the court does not have power to order costs in favour of the intervening Attorney-General. Subsection (3) provides that where an Attorney-General has intervened in a court, then "for the purposes of the institution and prosecution of an appeal, ... the Attorney-General shall be taken to be a party to the proceedings." The effect of this subsection is that, where an Attorney-General has intervened under s. 78A for the purposes of an appeal, costs orders may be made against him or her or in his or her favour. But subsection (4) provides that where the Attorney-General has instituted an appeal in which the Attorney-General has intervened, the court hearing the appeal may make such order as to costs ... "as the court thinks fit". In my respectful opinion, these provisions, in the case of an intervention by an Attorney-General under s. 78A, constitute a qualification on the broad statement by the Full Court of the Federal Court constituted by Davies, Wilcox and Gummow JJ in United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 where the court said: " An intervener, whether pursuant to s. 12 of the AD(JR) Act, O. 6, r. 8(1) of the Federal Court Rules, s. 78A of the Judiciary Act 1903 (Cth) or otherwise, becomes a party to the proceedings with the benefits and burdens of that status. " Order 6 r. 8 is not in terms a case of intervention but of joinder of a person as a party whose joinder is necessary "to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon". Section 12 of the Administrative Decisions (Judicial Review) Act 1977 permits a person to apply to the court to be made a party to the application. The position of an intervener was considered by the Court of Appeal in Corporate Affairs Commission v. Bradley (Commonwealth, Intervener) [1974] 1 NSWLR 391. The Full Court in United States Tobacco Company (supra) referred to the statement by Hutley JA in Corporate Affairs Commission v. Bradley (supra), where his Honour said at 396: " A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in Attorney-General of the Commonwealth of Australia v. The Queen (the Boilermakers' case) (1957) 95 CLR 529; [1957] AC 288, though he was only an intervener in R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, 254 in the High Court. " The question in Bradley was whether a basis for intervention existed, the question of costs being not in issue. At first instance, Sheppard J indicated that he did not consider it appropriate to deal with "the question of the costs of the intervener and of the parties of and occasioned by the intervention" in advance and he ordered that "the costs of the intervener and of the parties to the application made by the Commonwealth Government to intervene and of the subsequent intervention be reserved". The Court of Appeal held that the Attorney-General for the Commonwealth had no right to intervene on the grounds and for the purpose advanced by him, nor had the court any power to grant him such right to intervene. Further, if it had such power, its discretion was wrongly exercised and the Commonwealth's application should have been refused. The Court of Appeal granted leave to Bradley to appeal out of time against the decision allowing intervention and allowed that appeal. The court further ordered that the appellant should have as against the Commonwealth "such costs as were incurred by (him) in opposing the intervention of the Commonwealth which should also pay the costs of the application for leave to appeal and this appeal", and that in that appeal, there should be no order as to the costs of the Commissioner of Corporate Affairs. As to the basis of intervention, Hutley JA said, at 397, that intervention was never permitted at common law and intervention did not exist in equity. Intervention was the rule in jurisdictions derived from the ecclesiastical or civil law. Intervention existed by statute in the Matrimonial Causes jurisdiction, but such intervention was narrowly contained. Intervention was permitted in the Admiralty jurisdiction and exists in Probate. His Honour concluded at 398: " In my opinion there is no inherent power in the Supreme Court to permit intervention. " In Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319 at 331, Dixon J, as he then was, said:
" I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise. " This constitutional practice is based on the concept of legislative trespass. In Attorney-General for Ontario v. Winner [1954] 2 WLR 418; [1954] All ER, a case cited by Hutley JA in Bradley in support of the proposition that a person accepted as an intervener becomes a party to the proceedings with all the privileges of a party, Winner's appeal to the Supreme Court of Canada was the subject of intervention by the Attorney-General of New Brunswick and the Attorneys-General for Canada and the Provinces of Ontario, Quebec, Nova Scotia, British Columbia, Alberta and Prince Edward Island, together with the Canadian Pacific Railway Company, Macam Transport Company and Carwill Transport Limited. From the decision of the Supreme Court of Canada, the Attorney-General for Ontario and other interveners appealed by special leave to the Privy Council. There was a cross-appeal by Mr Winner and a counter-claim. The advice to the Privy Council was that the appeal should be dismissed and the cross-appeal allowed, and the counter-claim must also succeed. The Privy Council said: " The Attorneys-General for Ontario, Alberta, Prince Edward Island and New Brunswick must pay the costs of Israel Winner incurred in the courts in Canada and his costs of the consolidated appeals before this Board. All the interveners shall bear their own costs throughout. " In my opinion, from the above authorities, when the Commission intervenes pursuant to s. 163A, it does so pursuant to a right created by the statute. As I said in my earlier judgment, leave is not necessary. On intervention, the person accepted as an intervener can tender evidence, participate fully in all aspects of the argument and can appeal. It seems to me that in the absence of any express restriction on the orders for costs that may be made concerning intervention or associated with it, the unfettered discretion conferred on the Federal Court by s. 43 of the Federal Court of Australia Act applies. Notwithstanding that in my view the court has power to make an order in favour of the Commission in respect of its successful application to intervene, in the circumstances of this case, I do not propose to exercise the discretion as to costs in favour of the Commission.
The question on the motion to intervene was a significant one attended by not insignificant difficulty, as my earlier reasons indicate. In Westpac Banking Corporation v. Northern Metals Pty Ltd (1989) ATPR 40,953, there are observations suggesting that s. 163A is not concerned with whether particular conduct in trade or commerce is conduct which has breached a provision of the Act. So also in Polgardy v. Australian Guarantee Corporation Ltd (1981) 34 ALR 391. A different view appears to have been taken in Re Trade Practices Act (1974) s. 163A and Re an Application by Tooth & Co. Ltd (1978) 19 ALR 191: see also Re Ku-ring-ai Co-operative Building Society (No. 12) Ltd (1978) 22 ALR 621 and in particular the judgment of the Full Court in ASX Operations Pty Ltd v. Pont Data Australia Pty Ltd (1990) 27 FCR 460 in which, though it was not the ratio of their judgment, their Honours said: " ...one should have thought that B might seek from this court a declaration under s. 163A of the TP Act that B was not obliged by the contract with A to engage in conduct which contravened s. 52. " The matter is also clearly one of general public importance and of particular importance to the Commission. It is not an irrelevant circumstance that the notice of motion filed by the Commission on 26 February 1991 sought orders: 1. That the Trade Practices Commission be given leave to intervene in these proceedings. 2. And for such further or other orders as the Court sees fit. No express order for the costs of the motion was sought. The seeking of leave to intervene suggests to me that there was uncertainty by the Commission as to its position. As earlier indicated, the Court held that s. 163A(3) did not require leave. The consideration of the public interest is quite an important aspect of the exercise of discretion in the present case. There are other matters which touch on the question of whether an order for costs should be made in the Commission's favour. As earlier indicated, the primary basis rests on the proposition that a successful party should have its costs. In my opinion, that general proposition is directed to a consideration of the litigation as a whole and it is going too far to say that it necessarily applies to every interlocutory step in the principal proceedings. Order 62 r. 15 of the Federal Court Rules provides: " Where the costs of a motion, application or other proceeding are reserved by the Court or a Judge, the costs so reserved shall follow the event unless the Court or a Judge otherwise orders. " The "event" referred to, in my opinion, refers to the outcome of the principal litigation and requires that in that litigation there be an order made concerning costs. In Woods v. Walsh (1989) 22 FCR 204, Lee J, an acknowledged expert on the Federal Court Rules, said at 207: " Pursuant to O. 62 r. 15 of the Federal Court Rules, the Court or judge may make a specific order in respect of reserved costs upon determination of the principal proceedings, but if no such order is made the rule will operate to allow such costs to be taxed pursuant to the order reflecting the result of the proceedings in respect of costs. " His Honour said, at 206-7: " Although the words 'follow the event' may mean 'according to who wins', (see Davies v. Eli Lilly & Co [1987] 1 WLR 1136; [1987] 3 All ER 94, per Donaldson MR (at 1143; 99), per Lloyd LJ (at 1144; 100-101), per Balcombe LJ (at 1146;102) unless an order is made in respect of costs there would be no event in respect of which the provisions of r. 15 could operate. If no order for the payment of costs is made on disposal of the cause or matter, or an order is made that no costs be paid, no foundation for the taxation of the reserved costs would be provided by r. 15. The effect of the rule, therefore, is to make reserved costs of interlocutory proceedings costs in the cause of the successful party in the principal proceedings unless some other order is made in respect of them. " The primary concern that an order for costs reflect the justice of the situation is the reason that on many interlocutory questions the costs are reserved. In most cases, when an order for costs of the principal proceedings is made, no specific reference is made to costs which are reserved and they are, by the order for costs which is made, picked up in favour of the party that has been successful in the litigation. This circumstance reinforces the not uncommon position that in respect of the payment of costs of an interlocutory application, it is not necessarily just that the costs of an interlocutory application should follow the result of that interlocutory application but rather should be determined by the result of the principal litigation of which the interlocutory application forms but a part. For the same reason, costs orders on interlocutory applications are sometimes made whereby the costs of the application are the costs of the applicant in the principal proceedings or of a respondent in the principal proceedings, so that the benefit of that costs order is dependent on the outcome of the principal litigation. In this particular case, there has not been a final determination of the issues initiated between O'Keeffe Nominees and BP. In that sense, there has been no determination of which party would ultimately succeed and there has not been "the event" which, absent any specific order, reserved costs would follow. I therefore do not think that the Commission's application for the costs of its motion to intervene can be successfully granted by the mere invocation of the mantra that costs follow the event. When one looks at the particular circumstances of the application and of the whole context of the litigation, including in particular the public interest aspects of the questions considered, and to the absence of any final determination of the questions in the principal proceedings, I think that the fair and just order to make in relation to the costs of the Commission on its motion to intervene is that there be no order as to costs, and I so order. I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender. Associate Date: 21 February 1995 Counsel for the applicant: Mr G. H. Brandis instructed by: Mr D. R. Davies of Seymour Nulty Counsel for the respondent: Mr A. H. Goldberg QC with Mr R. G. Bain instructed by: Cannan & Petersen Counsel for the Intervener: Mr. R. S. O'Regan QC with Mr P.D.T. Applegarth instructed by: Mr L. Woodward of Australian Government Solicitor Date of Hearing: 8 March 1991
(1992) 38 FCR 85
(1989) 86 ALR 549
(1990) 170 CLR 534
(1912) 15 CLR 46
(1969) 14 FLR 433
(1986) 69 ALR 125
(1988) 20 FCR 520
(1957) 95 CLR 529
(1930) 44 CLR 319
(1981) 34 ALR 391
(1978) 19 ALR 191
(1978) 22 ALR 621
(1990) 27 FCR 460
(1989) 22 FCR 204