FEDERAL COURT OF AUSTRALIA Australian Crime Commission v NTD8 (No 2) [2009] FCAFC 143 COSTS – departure from ordinary rule that costs follow the event – special circumstances – public interest litigation – legitimate challenge to exercise of powers affecting fundamental rights and liberty of individual Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 applied AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON v NTD8 NTD 20 of 2008 BLACK CJ, MANSFIELD J & BENNETT J 12 OCTOBER 2009 ADELAIDE (HEARD IN DARWIN) IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 20 of 2008 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALIAN CRIME COMMISSION First Appellant JEFFREY PHILIP ANDERSON Second Appellant AND: NTD8 Respondent JUDGE: BLACK CJ, MANSFIELD J & BENNETT J DATE OF ORDER: 12 OCTOBER 2009 WHERE MADE: ADELAIDE (HEARD IN DARWIN) THE COURT ORDERS THAT: 1. There be no order for the costs of the appeal. 2. There be no order as to the costs of the hearing before the trial judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 20 of 2008 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALIAN CRIME COMMISSION First Appellant JEFFREY PHILIP ANDERSON Second Appellant AND: NTD8 Respondent JUDGE: BLACK CJ, MANSFIELD J & BENNETT J DATE: 12 OCTOBER 2009 PLACE: adelaide (heard in darwin) REASONS FOR JUDGMENT THE COURT 1 When it allowed this appeal, the Court gave the parties liberty to make written submissions as to the costs of the appeal and of the proceedings at first instance. 2 In response, the appellants argued that there is no reason why the ordinary rule that costs follow the event should not apply. 3 The respondent replied that there should be no orders for costs because there were three independent bases for concluding that the ordinary rule should not apply. 4 First, it was said that there were special public interest elements in this case. It concerned children and young people who were - as a practical matter - not able to challenge the Examiner's decision to issue the notice which might nevertheless affect them. Only the respondent was in a position to do so, and it was motivated by a concern for the interests of the children who had sought treatment from its staff, rather than any interest of its own. It was also said that the highly personal nature of the information sought by the notice raised very important public interest issues about the due exercise of the powers conferred upon the Australian Crime Commission; as in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 (Vadarlis) the case concerned fundamental rights and liberties of individuals who were unable to take action on their own behalf to determine their rights: see Vadarlis at 240-242. 5 Secondly, it was said that the respondent was successful on the principal issue in the appeal as to the matters the Examiner was required by law to take into account in issuing the notice and that in reality the outcome was about equal for each party. 6 Thirdly, a point was sought to be made about the conduct of the appeal. 7 We consider there to be substance in the first and second submissions made on behalf of the respondent. 8 There were undoubtedly special public interest elements in this case, as it concerned the possible acquisition under compulsion of law of highly personal and sensitive information about young women or girls in circumstances in which (though quite unintended) there could be harmful consequences to them of both a direct and indirect nature. The consequences, were they to occur, would be the result of the exercise of extraordinary powers. If information about young women or girls attending a medical practice to obtain advice about matters of an especially private nature is to be obtained under compulsion of law, in circumstances where those directly affected are unable to challenge the exercise of that power, there is a high public interest in a legitimate challenge, by a person or entity with a legitimate and caring interest in the matter, to the lawfulness of the exercise of the powers under which the information is sought: see Vadarlis at 242. 9 As to the second submission, it is true that success was shared although, of course, in the result the appellants were successful. This consideration is entitled to some, if limited, weight in the present case. 10 Overall we are persuaded that the special circumstances of this public interest litigation are such that the just and proper order for costs is that there be no order for the costs of the appeal and that there be no order as to the costs of the hearing before the trial judge. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Mansfield and Bennett. Associate: Dated: 12 October 2009 Counsel for the Appellants: S Gageler SC, S Maharaj QC and R Prince Solicitor for the Appellants: Australian Government Solicitor Counsel for the Respondent: A Young Solicitor for the Respondent: Midena Lawyers Date of Last Written Submissions: 4 August 2009 Date of Judgment: 12 October 2009