CATCHWORDS PRACTICE AND PROCEDURE - costs - consent order for separate decision of three questions - application dismissed - whether usual practice that costs follow the event in the proceedings should yield to a special order for costs. PRACTICE AND PROCEDURE - costs - application for judicial review of administrative decision - original respondent, decision-maker - additional respondent, party affected if relief granted - additional respondent joined on its own application - leading of evidence and making of submissions undertaken by original respondent - additional respondent in substance adopts submissions of original respondent - whether unsuccessful applicant should be ordered to pay additional respondent's costs. RIGHT TO LIFE ASSOCIATION (NSW) INC. v THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF HUMAN SERVICES & HEALTH & ANOR (No 3) No NG 606 of 1994 Lindgren J Sydney 7 September 1995 IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 606 of 1994 GENERAL DIVISION ) BETWEEN: RIGHT TO LIFE ASSOCIATION (NSW) INC. Applicant AND: THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF HUMAN SERVICES & HEALTH First Respondent FAMILY PLANNING VICTORIA INC. Second Respondent CORAM: Lindgren J PLACE: Sydney DATE: 7 September 1995 MINUTE OF ORDERS THE COURT ORDERS: 1. That the applicant pay the costs of the first respondent. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 606 of 1994 GENERAL DIVISION ) BETWEEN: RIGHT TO LIFE ASSOCIATION (NSW) INC. Applicant AND: THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF HUMAN SERVICES & HEALTH First Respondent FAMILY PLANNING VICTORIA INC. Second Respondent CORAM: Lindgren J PLACE: Sydney DATE: 7 September 1995 REASONS FOR JUDGMENT (No 3) NATURE OF PROCEEDINGS: These Reasons for Judgment relate to the costs of the proceedings at first instance before me. Those proceedings are reported at (1994) 52 FCR 209 and (1994) 36 ALD 264. An appeal was dismissed by a Full Court (see (1995) 128 ALR 238) On 30 September 1994 I ordered that the application be dismissed, save in so far as it sought an order for costs. The Full Court ordered the appellant to pay the cost of the first and second respondents to the appeal. Since the decision of the Full Court on 10 February 1995, the proceedings at first instance have been re-listed before me and, pursuant to directions, the parties have supplied written submissions relating to the costs of those proceedings. BACKGROUND: The history of the proceedings is amply set out in the three reports to which I have referred above. It is necessary only that I refer to aspects relevant to the question of costs. The applicant ("Right to Life") applied for an order of review under the Administrative Decisions (Judicial Review) Act (1977) (Cth) ("the AD(JR) Act"). It named only the first respondent ("the Secretary") as a respondent. The decision which Right to Life attacked was a "decision ... not to stop three clinical trials of the drug Mifepristone which are proceeding under Clinical Trial Notification (CTN) Numbers 93/434, 94/137 and 94/138)." The second respondent, Family Planning Victoria Inc ("FPV"), was the institution in Australia which undertook the clinical trials the subject of CTN Numbers 94/137 and 94/138. On the hearing on 15 September 1994, Mr J M Snowdon, solicitor, sought, and was granted without objection, leave to appear for FPV. At the conclusion of the hearing on 15 September 1994, Mr Snowdon applied for an order joining FPV as a party: see s 12 of the AD(JR) Act. Right to Life did not oppose this, subject to a submission which it wished to make that it should not, in any event, be ordered to pay the costs of FPV. FPV had an interest in the decision attacked which would be affected if the relief sought by Right to Life were to be granted. I ordered that FPV be added as second respondent, reserving Right to Life's right to submit that it should not, in any event, be liable to pay FPV's costs. On the hearing on 15 September 1994, the evidence comprised affidavit evidence and documents admitted as exhibits. There was no oral evidence. At the parties' request, I ordered that the three questions set out below be decided separately from any other question in the proceedings. I answered the first question on 23 September 1994 (see (1994) 52 FCR 209) and the second and third questions on 30 September 1994 (see (1994) 36 ALD 264). The questions and the answers are as follows: "1. Is the applicant a 'person aggrieved' within the meaning of the Administrative Decisions (Judicial Review) Act? Answer: No. 2. (a) Was there a 'decision' by the first respondent within the meaning of s 5 of the Administrative Decisions (Judicial Review) Act or a 'failure [by the first respondent] to make a decision' within the meaning of s 7 of that Act? Answer: As to 'decision' - Yes, as to 'failure to make a decision' - No. (b) Was there 'conduct' by the first respondent within the meaning of s 6 of the Administrative Decisions (Judicial Review) Act? Answer: No 3. Under para (e) of Item 3 of Sch 5A to the Therapeutic Goods Regulations (Cth), is there a positive obligation on the first respondent to investigate possible breaches of State law? Answer: No." It was common ground that question 2 (b) and the "failure to make a decision" part of question 2 (a) were both to be answered "no". Of the three questions, the one which occupied most of the hearing time was the first. My negative answer to that question led to the result that the application was to be dismissed. However, I deferred making an order dismissing the application until I had answered the "decision" part of question 2 (a) and question 3. On 30 September 1994 I answered them in the ways indicated above and, as noted earlier, ordered that the application be dismissed save in so far as it sought an order for costs. Accordingly, of the issues debated, the Secretary succeeded on questions (1) and (3) while Right to Life succeeded on the "decision" part of question 2 (a), and the Secretary succeeded in the proceedings as a whole As I noted in my second judgment ((1994) 36 ALD at 268) the answering of the second question had become of questionable utility, since it was difficult to imagine how it could ever be established that on 31 August 1994 the Secretary had become aware that to continue the trials was contrary to the public interest (the condition under the Therapeutic Goods Regulations, Schedule 5A, item 3, para (e) of his becoming entitled to stop them), and so was entitled on that date to decide to stop them. However, I considered that question 2 (a) had to be approached on the hypothesis that on a final hearing it was established that the Secretary was so aware and was so entitled on 31 August 1994, and on the further hypothesis, contrary to my holding, that Right to Life was a "person aggrieved" for the purpose of s 5 of the AD(JR) Act. As I noted ((1994) 36 ALD at 268) once this approach to question 2 was taken, the question posed for my decision became a narrow one and much of the difficulty touching it disappeared. OUTLINE OF PARTIES' SUBMISSIONS ON COSTS: The Secretary submits that costs should follow the event, that is to say, that Right to Life should be ordered to pay its costs. Right to Life says that there should be no order for costs. It says that there should be no such order in favour of the Secretary because the clinical trials were highly controversial and it was in the public interest that the application be made, the Secretary did not file a notice of objection to competency under O 54 r 4 of the Federal Court Rules, and Right to Life succeeded on question 2. It says that there should be no order for costs in favour of FPV because it did not join FPV as a respondent, FPV was joined on its own application in the face of a warning that Right to Life would submit that it should not be ordered to pay FPV's costs in any event, and the issues in the case were adequately and appropriately contested as between Right to Life and the Secretary. FPV submits that Right to Life should be ordered to pay its costs because it had an interest as undertaker of clinical trials which would have been affected by the granting of the relief sought by Right to Life, and so was a proper party to the proceedings. REASONING: As between Right to Life and the Secretary, the Secretary has succeeded and Right to Life has failed in the proceedings. In accordance with the ordinary practice that costs follow the event, Right to Life would be ordered to pay the Secretary's costs. Although the clinical trials were controversial from Right to Life's viewpoint and Right to Life is not established to pursue the material interests of its members, I do not accept that these facts justify a departure from the usual practice (cf Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at 512 (Aickin J); Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 (FCA/Burchett J) at 170-171). Nor does the absence of a notice of objection as to competency persuade me that the usual order should not be made: the consent order for separate decision of the three questions achieved, in substance, the same effect. It is put against the making of the usual order that Right to Life succeeded on question 2 (a). But for several reasons, I do not think that this should cause a departure from the usual practice. First, as I noted at (1994) 36 ALD at 265, it followed from my answer to question 1 that the proceedings were to be dismissed and it was unnecessary that questions 2 and 3 be answered at all. They were answered only in order that the parties and a Full Court would have the benefit of answers to all three questions against the possibility that a Full Court might hold that my answer to question 1 was wrong. Secondly, of all issues, that posed by question (1) occupied most time and attention (but see below). Thirdly, on the hearing Right to Life abandoned reliance on "conduct" and "failure to make a decision", so that one view which is open is that the Secretary succeeded on four out of five issues rather than on two out of three (but see below). Fourthly, although Right to Life succeeded on the "decision" part of question 2 (a), it did so on the basis of the assumptions referred to earlier which made the answering of the question of doubtful utility. Fifthly, a mere recognition of success on, or attribution of time and attention to, the respective separate questions, does not recognise, as should be recognised, that the Secretary succeeded in the proceedings and that the commencement of the proceedings was not justifiable. It is well accepted that in cases involving multiple issues on some of which the respective parties have succeeded, "Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation": Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 (FCA/FC) at 271-272; (the same approach was taken in Newcrest Mining (WA) Ltd v The Commonwealth of Australia, unreported, FCA/French J, 17 December 1993, at p 8, Golden West Refining Corporation Ltd v Daly Laboratories Pty Ltd, unreported, FCA/Carr J, 16 February 1995, at p 6, and Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs, unreported, FCA/Carr J, 24 May 1995 at pp 6-7). The considerations that the Secretary had unqualified success in the proceedings as a whole and success on the major part of the controversy measured by number of issues (however counted) and hearing time, make it clear to me that it is appropriate that Right to Life pay the Secretary's costs. In relation to the costs issue as between Right to Life and FPV, in my view it is not appropriate that Right to Life be ordered to pay FPV's costs. The Secretary was at least as well placed as FPV to defend the decision impugned. He was represented by senior and junior counsel. On the hearing of the proceedings to date, there was nothing that FPV could or did contribute in the form of the independent leading of evidence or making of submissions. FPV's case on the separate questions was no more than the Secretary's case. In substance, FPV adopted the Secretary's submissions. While it was appropriate for FPV to be joined and to have the opportunity, as a party, of participating in the hearing, I do not think it appropriate in these circumstances that it should have an order for costs (I note that the discretion was exercised in the same way in not dissimilar circumstances by a Full Court of this Court in Harrigan v Department of Health (1986) 72 ALR 293 (FCA/FC) at 297). Accordingly, there will be no order for costs as between Right to Life and FPV. CONCLUSION: The only order necessary to be made is an order that Right to Life pay the Secretary's costs of the proceedings at first instance. I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 7 September 1995 Heard: 15 September 1994 Date of receipt of last written submissions: 5 May 1995 Place: Sydney Decision: 7 September 1995 Appearances: Mr D F Rofe QC and Mr A J Tudehope of counsel instructed by O'Hara & Company appeared for the applicant. Mr D M J Bennett QC and Mrs A C Bennett of counsel instructed by Australian Government Solicitor appeared for the first respondent. Mr J M Snowdon of Phillips Fox appeared for the second respondent.