Consideration
7 The Court has a broad discretion to award costs: Federal Court of Australia Act 1976 (Cth), s 43. That discretion must be exercised judicially, with appropriate regard to guiding principles, including the central principle that a successful party should be compensated for expenses that it has incurred because it has been obliged to litigate by the unsuccessful party: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [25] (the Court). However, the application of that principle may be modified where the successful party's conduct in relation to the litigation justifies a different outcome: Northern Territory v Sangare at [25].
8 I shall take a broad-brush approach to determining the extent to which the Minister's entitlement to his costs should be reduced to account for his conduct in relation to the litigation. Such an approach is appropriate in the circumstances, which include my familiarity with the proceeding.
9 I have determined that the Minister's entitlement to costs should be reduced by 10%. The reason for that reduction is that the Minister's solicitors made errors in the preparation of the court book, which caused confusion and caused the parties' legal representatives reasonably to undertake additional work. I accept the Minister's submission that if the applicant had squarely taken issue with the court book, and raised the need for the Minister to file evidence in relation to whether the assault charge police brief was attached to the Department's letter sufficiently before the hearing on 8 March 2019, then the Minister might have resolved the issue by evidence without the need to adjourn the hearing. Nonetheless, it is not disputed that the relevant error in the court book caused confusion, nor that it also caused the Minister to prepare additional evidence, namely the affidavits of Mr Cunynghame and Ms Muscat filed on 29 March 2019. Further, it is apparent that it also contributed to the cost of preparing the earlier affidavit of Ms Kenny filed by the applicant on 26 June 2018. The issue of the applicant's delay in failing squarely to raise the issue before the commencement of the hearing on 8 March 2019 is of limited relevance to the costs of preparing the additional affidavits. The Minister would have incurred additional costs in preparing additional evidence whether that work occurred before the hearing on 8 March 2019, or, as occurred, after an adjournment of that hearing. The applicant should not be required to indemnify the Minister for costs incurred as a result of the errors in the preparation of the court book, and I consider that a modest 10% reduction in the Minister's entitlement to costs is an appropriate adjustment in the circumstances.
10 Therefore, the applicant should pay 90% of the Minister's costs on the usual party and party basis, as agreed or taxed, and an order to that effect shall be made.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.