› Whether novel questions of public importance and liberty of the individual justified departure from usual rule that costs follow the event
› Federal Court of Australia Act 1976 (Cth), s 43
Practice and Procedure
› Costs
› Discretion to award costs
› Public interest litigation
› Whether proceedings constituting challenge to executive power negated public interest considerations
› Federal Court of Australia Act 1976 (Cth), s 43
Practice and Procedure
› Costs
› Discretion to award costs
› Appeal costs
› Whether novelty and difficulty of questions raised on appeal justified departure from usual costs order
› Federal Court of Australia Act 1976 (Cth), s 43
Practice and Procedure
› Costs
› Statutory prohibition on continuation of proceedings
› Whether application for costs constituted continuation of proceedings
› Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), s 7
Quick Take
1Where proceedings raise novel and important questions of law concerning the liberty of the individual, executive power, and constitutional matters, and there is divided judicial opinion on those issues, these factors may together constitute sufficient reason to depart from the ordinary rule that costs follow the event.
2The characterisation of litigation as an 'interference with executive power' does not negate public interest considerations in the costs discretion; determining whether executive power exists and its scope is not an interference with its exercise but a core function of judicial review enshrined in s 75(v) of the Constitution.
3Retrospective legislation purporting to prohibit the 'continuation' of proceedings does not, absent express provision, extend to deprive the court of power to make costs orders incidental to judgments already delivered.
Case Details
Citation[2001] FCA 1865
Reported(2001) 115 FCR 229(2001) 188 ALR 143
CourtFCA
JurisdictionCommonwealth
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