Palmer v State of Western Australia

1. The applicants' application for indemnity costs against the respondents is dismissed.
2. The applicants pay the respondents' costs of the application for indemnity costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 A case management hearing was listed for 7 August 2020 at the request of the respondents. At that hearing, the respondents submitted that the Attorney-General of the Commonwealth of Australia (the Commonwealth) required leave to withdraw or discontinue its intervention in the proceeding, and that such leave should only be granted upon particular conditions. 2 In Palmer v State of Western Australia (No 3) [2020] FCA 1220, I rejected the respondents' submissions. I ordered that the Commonwealth pay the parties' costs of and incidental to the case management hearing. 3 The applicants now seek an order that the respondents pay the applicants' costs of the case management hearing on an indemnity basis to the extent that those costs are not covered by the order against the Commonwealth. I made orders for the exchange of submissions and affidavits and indicated that the application would be decided on the papers. 4 Sections 43(1), (2) and (3)(g) of the Federal Court Act 1976 (Cth) give the Court a discretionary power to award costs on an indemnity basis. The applicants submit that indemnity costs can be awarded against a party where there is a disregard of clearly established law, or undue prolongation of the case by groundless contentions: see Coshott v Burke (No 3) [2019] FCAFC 23 at [4]-[8], [37]; Melbourne City Investments Pty Ltd v Treasury Wines Estates Pty Ltd (No 2) [2017] FCAFC 116 at [5]; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at [19], [24]; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202 at 400-401. The applicants submit that there is no conceivable basis on which the respondents' submissions might have succeeded. 5 The parties were unable to point to any authorities that were directly relevant to the issues raised at the case management hearing. In that circumstance, the respondents' submissions did not disregard any clearly established law, nor can the submissions be described as groundless or hopeless. The respondents' submissions were arguable. This is not an appropriate case for the making of an order for indemnity costs. 6 The applicants' application for indemnity costs will be dismissed. I will order that the applicants pay the respondents' costs of the application for indemnity costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.