O'Keeffe Nominees Pty Ltd v BP Australia Ltd TPC (Intervener) [1995] FCA 109

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: