JHIDGMENT No. 7797 S37. NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G422 of 1987 ) ) GENERAL DIVISION BETWEEN: AUSTRALIAN DEFENCE CREDIT UNION Applicant AND: REGISTRAR OF CO-OPERATIVE SOCIETIES Respondent CORAM: Davies J. DATE: 3 December 1987 PLACE: Sydney REASONS FOR JUDGMENT This matter has arisen because the parties are now content that the proceedings should not continue, and as a result they have sought to bring the proceedings to an end, which 1s a sensible course. However, the applicant seeks an order as to costs. Costs are in the discretion of the Court and the Court May make an order for costs against even a successful respondent. But there must be good ground for that. See for example Gladstone Park Shopping Centre Pty Ltd v. Wills & Ors (1984) 6 LR 496 at 504-5. 2. Mr M.B. Smith, counsel for the applicant, relied on the history of this matter and sought to show that the new decision which was made on 17 November 1987, and which granted in effect what the applicant had sought to achieve - that is to say an unrestricted right to trade throughout the Australian Capital Territory - demonstrated an acceptance by the respondent of the applicant's case, and was brought about solely because of the present proceedings. It does not seem to me that that contention has been established. In his letter communicating the new decision the Registrar referred to changed circumstances, and S. Kavallaris who appears for the respondent, has referred to two of such circumstances: (1) that a competitive credit union has merged with a Victorian union and become based in Victoria; and (2) that a credit union in the Australian Capital Territory has failed. Accordingly, there were changed circumstances, and it appears that it has not been established that the Registrar did not make the new decision because of those changed circumstances. Mr Smith also put the submission that the decisions under review were invalid, because they were made with an improper purpose, namely, to protect the interests of credit unions already trading in Canberra, whereas the ambit of the Registrar's consideration ought to have been whether the applicant credit union was promoting the interests of its own members and carrying on as a co-operative society in their interests. 3. Mr Smith put the view that the condition complained of, which restricted the applicant union to trading only ina part of the Australian Capital Territory, namely, Jervis Bay, was invalid because the Registrar had no power to determine in what part of the territory the applicant would carry on its business. Finally Mr Smith put the point that the decision under review was reasonable. I need not consider the last point which seems to me to be the most contentious of the three. But of the two prior points, I see the force in what Mr Smith says. I have a prima facie view that the submissions that he made are correct. But having said that, there has been no true hearing of the matter. This case has not been set down for hearing. Miss Kavallaris did not attempt to put a full argument on the points, and it seems to me that in these circumstances I ought not to form a concluded view on them. The position thus is that, although I see that there 1s a prima facie case, even a strong prima facie case, that the applicant would succeed if it went to trial, I think it amproper to come to a final view on the submissions at this stage. As the applicant does not wish to proceed to a trial, I must determine this application on the basis that the submissions remain unresolved. On this footing there is no basis for an order that the applicant pay the respondent's costs. 4. I think the proper order to make is one which will bring the proceedings to an end forthwith, rather than to give leave to discontinue. I will, therefore, by consent, order that the proceedings be dismissed. I will make no order as to costs. I certify that this and the 3 preceding pages are a true copy of the Reasons for Judgment herein of The Honourable Mr ay Davies. Associate: Date: ecember 1987 Counsel for the applicant: Mc M.B. Smith Solicitors for the applicant: Tress Cocks & Maddox Counsel for the respondent: Ms S. Kavallaris Solicitors for the respondent: Australian Government Solicitor Date of hearing: 3 December 1987