Rushton v Commonwealth Superannuation Corporation

1. With reference to orders 5 and 6 of the Court's orders dated 9 June 2020, there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 These reasons for judgment relate to the first respondent's application that costs of the notice of objection to competency filed on 17 February 2020 and the interlocutory application filed on 25 February 2020 be its costs in the cause. For the following reasons that application will be rejected. The reasons for judgment in respect of the interlocutory application are to be found in Rushton v Commonwealth Superannuation Corporation [2020] FCA 777. 2 The relevant principles guiding the exercise of the Court's discretion to make an order as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well known. The discretion has to be exercised judicially even though, in the ordinary course, costs follow the event. The successful party's conduct may disentitle it to the favourable exercise of the discretion. The underlying purpose of a costs order is compensatory, not punishment. 3 The first respondent contended that it should have the benefit of a favourable costs order in circumstances where: (a) the notice of appeal which was successfully struck out was described by the Court as "impenetrable"; (b) the first respondent had acted consistently with its status as a model litigant in identifying a possible question of law; and (c) although the first respondent failed in respect of its application for summary dismissal or a permanent stay, that relief was sought in the alternative to the successful relief, namely the striking out of the originating application. 4 The Court is not persuaded by the first respondent's submissions. Considerable time was taken up by the first respondent's approach in seeking multiple alternative forms of relief in circumstances where ultimately it prevailed only in respect of one such form. The fact that the other relief was sought in the alternative reflects the first respondent's choice in adopting a scatter-gun approach. Equally significantly, a substantial reason for the first respondent's failure to make good its alternative clams for relief was its own conduct in not providing the Court with all the materials which were before the trustee or the Authority. 5 For all these reasons, I consider that there should be no variation to order 5 of the orders dated 9 June 2020. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.