Donholken Pty Ltd v Treasurer of the Commonwealth of Australia Canwest Global Communications Corp v Treasurer of the Commonwealth of Australia Selli Pty Ltd v Treasurer of the Commonwealth of Australia [1997] FCA 847

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) VICTORIA DISTRICT REGISTRY )

VG 214 OF 1997 BETWEEN: DONHOLKEN PTY LTD

Applicant

AND: TREASURER OF THE COMMONWEALTH OF AUSTRALIA

Respondent

NG 375 OF 1997 BETWEEN: CANWEST GLOBAL

COMMUNICATIONS CORPORATION

Applicant

AND: TREASURER OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

VG 218 OF 1997 BETWEEN: SELLI PTY LTD

Applicant

AND: TREASURER OF THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: HILL J PLACE: SYDNEY DATED: 28 AUGUST 1997

REASONS FOR JUDGMENT On 8 August 1997 I gave judgment in these proceedings. Implicitly, if not explicitly, I reserved the question of the appropriate orders to be made to a later date when argument could be heard on them. I had at the time, however, indicated a cost order. That cost order is now challenged. In essence the Treasurer says that whatever may be the case with orders in respect of Donholken Pty Ltd ("Donholken") and Selli Pty Ltd ("Selli") as to which other submissions are made, CanWest Global Communications Corporation ("CanWest") should either pay the Treasurer's costs or alternatively that there be no order as to CanWest's costs. It is said, and there is some force in the submission, that CanWest raised a multitude of matters, some requiring little time during the court proceedings and others such as the factual issue of what happened at the meeting with the Treasurer requiring considerable time, when ultimately the success in the application was founded upon matters raised by Donholken and Selli, namely the question of whether the orders had been made under the appropriate paragraph of s18(4) of the Foreign Acquisitions and Takeovers Act 1975 and whether natural justice had been given to Donholken and Selli in the process leading up to the Treasurer making the orders. The question of the appropriate order for costs is a matter of discretion which must be exercised judicially. There are statements in the cases which indicate that it may sometimes be inappropriate to look at the outcome issue by issue but rather to look at the overall outcome of the case and there have been however other cases, particularly where a party has spent considerable time on an issue which has been lost where a different approach has been adopted. All these cases really show is that each case must be judged by reference to its own merits. If there be any general principle at all it is that costs will usually follow the event. That principle obscures its own ambiguities. The point is also made by senior counsel for the Treasurer that there was no need for Donholken and Selli to be separately represented. It is said that CanWest was in any event paying the costs and each of the three parties in essence adopted the submissions of the other. As I indicated in argument the submission came perilously close to suggesting that two parties were bound at the risk of losing costs to have the same legal representatives if their interests were the same. There is no suggestion in the cases of any such principle. A party is entitled to choose his or her own legal representation even if that person's interests align with the interests of some other person separately represented. It is for this reason that I have no doubt that the proper order so far as Donholken and Selli is concerned is that the Treasurer pay their costs. That still, however, leaves me with the question of CanWest and the appropriate order to be made in respect of it. I think that the costs order should to some extent reflect in this case the fact that a considerable amount of time and attention was taken with a factual issue which ultimately was not resolved favourably to CanWest. It was an issue unique to CanWest and certainly took a great deal of time. Some submissions which CanWest made took no court time but were merely dealt with in writing. Other submissions, of course, reinforced the submissions that were put by Donholken and Selli. Doing the best I can to reflect both the overall outcome, on the one hand, and the fact that considerable time was taken over issues raised by CanWest resolved not favourably to it on the other, I think the appropriate order in the circumstances is that the Treasurer pay 50 per cent of the costs of CanWest. I would now make the following orders additional to those made on 8 August 1997: 1. Each of the orders dated 2 May 1997 purporting to be made by the Treasurer of the Commonwealth of Australia under s 18(4) of the Foreign Acquisitions and Takeovers Act 1975 in respect of Selli, Numeration Pty Limited, Turnand Pty Limited and Donholken be set aside ab initio.