CATCHWORDS Practice and Procedure - Costs - Appeal discontinued -—- Legislation resolving question against appellant - Legislation enacted after filing of Notice of Appeal - Each party to pay own costs. Repatriation Leqislation Amendment Act 1984. HONORA MARY PRIDE v ROLAND PATRICK HASSELL, DESMOND MATTHEW TEHAN and STANLEY McLEISH HARRIS W.A. G74 of 1984 CORAM: Bowen C.J., Northrop and Morling JJ. 11 December 1984 Perth IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A. No. G 74 of 1984 ) GENERAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : HONORA MARY PRIDE Aprellant and ROLAND PATRICK HASSELL, DESMOND MATTHEW TERAN and STANLEY McLEISH HARRIS, a Repatriation Review Tribunal First kespondents and THE COMMONWEALTH OF AUSTRALIA Second Respondent COURT: Bowen CJ, Northrop and Morling JJ. DATE: 11 December 1984 PLACE: Perth THE COURT ORDERS THAT: 1. The appellant be given leave to discontinue the appeal. 2. Each party pay his own costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A. No. G 74 of 1984 ) GENERAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : HONORA MARY PRIDE Apreiiant and ROLAND PATRICK HASSELL, DESMOND MATTHEW TEHAN and STANLEY McLEISH HARRIS, a Repatriation Review Tribunal First Respondents and THE COMMONWEALTH OF AUSTRALIA Second Respondent COURT: Bowen CJ, Northrop and Morling Jd. DATE: 11 December 1984 PLACE: Perth Lf EX TEMPORE JUDGMENT _ BOWEN CJ: In this matter the appellant, Honora Mary Pride, has appealed against two sets of orders made by Mr. Justice Toohey. The first concerned an application for a writ of mandamus against Mr. Hassell, Mr. Tehan and Mr. Harris, members of the Repatriation keview Tribunal. Mr. Justice Toohey in relation to that application dismissed the application for a writ of mandamus, aave the parties likerty to file and serve within 21 days written submissions in support of or opposition to the application for a writ of prohibition, and adjourned the application with liberty to apply generally. He made no order as to costs. Subsequentiy an application for a writ ef prohibition was brought against the same three, members cf the Repatriation Review Tribunal. Mr. Justice Tochey dismissed this application for a writ of prohibition, and at the request of counsel for the appellant reserved the costs. The appeal to uS 1S against the order dismissing the application for a writ of mandamus, and also the order dismissing the application for a writ of prohibition. There is also a suggestion that we should be seized of the costs below. So far as the costs below are concerned, I am of opinion that we should not interfere in that matter. In relation to reserved costs the parties are at liberty to return to the trial judge for an order in respect of those costs. So far as the costs of the appeal are concerned, this 1s the only 1ssue remaining between the parties because the appellant has decided to discontinue the appeal. The appellant has not filed a notice of discontinuance. Where that occurs, under our rules it is automatic under the rules that the person discontinuing pays the costs of the other side unless the Court otherwise orders. However, the appellant has allowed the apreal to be lzsted, but now seeks cnly to make submissions as to costs before discontinuing. He has argued that, aithough the appellant is the party discontinuing, it should have an order for costs against the second resvondent. the Commonwealth of Australia, who was joined and appeared below and on this appeal, It is unusual for the Court in the exercise of the very wide discretion which it has in relation to costs to order costs against a successful party. However, it sometimes does so. Some cases are set forth, for example, in Ritter v. Godfrey (1920) 2 KB 47 in the judgment of Atkin LJ. at pages 60 and 61. His Lordship cites three classes of case which would be exceptions where it might be done. Each of them involves some form of questionable or wrongful conduct on the part of the party against whom the costs were to be awarded. Nothing of that kind appears in the present case. Although costs are sought against the Commonwealth, there 15 no suggestion that in any way they have acted wrongly. However, what has occurred is that the parliament, the House of Representatives, Senate and the Queen, have passed a statute, the Repatriation Legislation Amendment Act 1984, with provision that it shall come into operation on 1 January 1985. It was assented to on 9 October 1984. This has produced a set of circumstances inwhich it has become impossible for the appellant usefully to continue with the arqument of the appeal. I may add that we would be unwilling to encourage them to argue the appeal in full simply in order to determine liability for costs. In these circumstances, 1t appears to me that although the Commonwealth, as I say, 18 not aquilty of any wrong conduct, 1t has produced the situation which has now arisen. Both parties have left ait to alate staqe to ascertain the consequences of the new legislation and to determine whether it has rendered the arqument of the appeal virtually moot. In my opinion, the fairest result would be for this Court to order that each party pays its own costs. I would so order. I certify that this and the preceding three pages are a true copy of the Reasons for Judgment herein of His Honour the Chief Judge, Sir Nigel Bowen K B.E. GDh Associate 11 December 1984 ct oO A hb a wo rs Bi 'o liability for costs. In these circumstanc#s, iT apvears t3 re that although the Commonwealth, as I say, 18 not quailty cf any weeng ronduct, it has produced tha situation which has new arisen. Both warties have left it to alate staze to ascertain the consequences of the new legislation and to determine whether 1 has rendered the argument of the appeal virtually moot. In my opinion, the fairest result would be for this Court to order that each party pays 1ts own costs. I would so order. ' I certify that this and the preceding three pages are a true copy of the Reasons for Judgment herein of H1s Honour the Chief Judge, Sir Nigel Bowen K B.E GD ePebw Associate 11 December 1984 IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A. No. G 74 of 1984 ) GENERAL DIVISION ) ON APPEAL FROM THE FEDERAL CoOvuUrT OF AUSTRALIA BETWEEN : HONORA MARY PRIDE Appellant and ROLAND PATRICK HASSELL, DESMOND MATTHEW TEHAN and STANLEY McLEISH HARRIS, a Repatriation Review Tribunal First Respondents and THE COMMONWEALTH OF AUSTRALIA Second Respondent COURT: Bowen CJ, Northrop and Morlina JJ. DATE: 11 December 1984 PLACE: Perth EX TEMPORE JUDGMENT NORTHROP J: The facts giving rise to the praesent application have been outlined by the learned Chief Judge. In my opinion, under section 43 of the Federal Court of Australia Act 1976, the Court has an unfettered discretion as to any orders it makes for costs, and in apelying that discretion I adopt the view expressed by the Hiaqnh Court in Milne v. Attornev-Ganeral for the Stats of Tasmania (1956) 95 CLR 460 i) at p.477 where the Court expressed the general rule as follows: "It ls a general rule that a wholly successful defendant snould receive his costs unless good reason 1s shown to the contrary." The judament then goes on to say that in that case there was no reason shown to the contrarv. In tne present case, 1n my opinion, nothing that has been said on behalf of the appellant has shown any reason to the contrary why the general principle should not be applied. This was a case where, at the time of the hearing before the Federal Court constituted by a single judge, the existence of a bill before parliament was known, a bill containing a provision which gave power to the proposed new Board to compel an applicant for a pension or benefit to appear before the relevant Board. At the present time the appellant seeks leave to discontinue, which, in the absence of the filing of a notice of izscontinuance, I would treat as seeking the dismissal of the appeal. In my opinion, the existence of an Act of Parliament coming into overation atter the trial, but not taking effect until later, 1s not sufficient reason to depart from the normal owrinciple. I would order that the appellant pay the respondent's costs of the appeal. As far as the costs reserved by the trial judge are concerned, they should be dealt with pursuant to the leave reserved by that judae. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Northrop. Associate 1l December 1994 IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A. No. G 74 of 1984 ) GENERAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN HONORA MARY PRIDE Appellant and ROLAND PATRICK HASSELL, DESMOND MATTHEW TEHAN and STANLEY McLEISH HARRIS, a Repatriation Review Tribunal First Respondents and THE COMMONWEALTH OF AUSTRALIA Second Respondent COURT: Bowen CJ, Northrop and Morling JJ. DATE: 11 December 1984 PLACE: Perth EX TEMPORE JUDGMENT MORLING J: I agree with the reasons given by the Chief Judge and with the order he proposes. I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Morling Associate T7 herareay 790"