FEDERAL COURT OF AUSTRALIA Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd (No 2) [2016] FCAFC 165 Appeal from: Aboriginal Community Benefit Fund Pty Ltd v Chief Executive Centrelink [2016] FCA 769 File number: QUD 533 of 2016 Judges: PERRAM, GRIFFITHS AND MORTIMER JJ Date of judgment: 2 December 2016 Catchwords: COSTS – costs where case pursued on appeal not substantively pursued at trial Date of hearing: 22 September 2016 Date of last submissions: 25 November 2016 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 2 Counsel for the Appellant: Mr T Howe QC with Mr G Del Villar Solicitor for the Appellant: Allens Counsel for the Respondents: Mr S Doyle QC with Mr M Black Solicitor for the Respondents: Small Myers Hughes ORDERS QUD 533 of 2016 BETWEEN: CHIEF EXECUTIVE CENTRELINK Appellant AND: THE ABORIGINAL COMMUNITY BENEFIT FUND PTY LTD First Respondent ACBF FUNERAL PLANS PTY LTD Second Respondent ACBF FUNERAL PLANS AUSTRALIA PTY LTD Third Respondent JUDGES: PERRAM, GRIFFITHS AND MORTIMER JJ DATE OF ORDER: 2 DECEMBER 2016 THE COURT ORDERS THAT: 1. Set aside orders 1 - 4 made in the Court below on 30 June 2016 and in lieu thereof order that: 1. The Application be dismissed. 2. The Applicants pay the Respondent's costs of the trial as taxed or agreed. 2. Each party bear their own costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 In Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd [2016] FCAFC 153, we allowed the appeal but called for further submissions on the issue of the costs of the trial and the costs of the appeal. The case pursued on appeal was not substantively pursued at trial. Had it been pursued at trial, the appeal would have been unnecessary. The appellant has succeeded, but it would be unfair if the respondent were to bear the full expense of the process of forensic maturation under which the appellant's case successfully went. On the other hand, had the correct argument been raised substantively at trial, the respondent would have suffered an adverse costs order. In those circumstances, the appropriate orders are that the respondent should bear the costs of the trial (which would have been borne if the correct argument had been advanced by the appellant at trial), but there should be no costs of the appeal (which would not have been necessary on the same hypothesis). It is true that an argument is available on that basis that the appellant should pay the costs of the appeal, but the fact is that the appellant won the appeal, which deserves to be recognised. 2 This Court made orders on 11 November 2016 allowing the appeal but going no further. The following additional orders should now be made: 1. Set aside orders 1 - 4 made in the Court below on 30 June 2016 and in lieu thereof order that: 1. The Application be dismissed. 2. The Applicants pay the Respondent's costs of the trial as taxed or agreed. 2. Each party bear their own costs of the appeal. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Griffiths and Mortimer. Associate: Dated: 2 December 2016