FEDERAL COURT OF AUSTRALIA Bahonko v Nurses Board of Victoria (No 5) [2007] FCA 1591 COSTS — discretion conferred upon court by s 43(2) of the Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation — ordinary rule is that costs follow the event Federal Court of Australia Act 1976 (Cth), s 43(2) Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 cited Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 cited Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136 cited Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 cited Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 cited STANISLAWA BAHONKO v NURSES BOARD OF VICTORIA AND FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE VID 855 OF 2006 MIDDLETON J 18 OCTOBER 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 855 OF 2006 BETWEEN: STANISLAWA BAHONKO Applicant AND: NURSES BOARD OF VICTORIA First Respondent FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE Second Respondent JUDGE: MIDDLETON J DATE OF ORDER: 18 october 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant pay the first respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 855 OF 2006 BETWEEN: STANISLAWA BAHONKO Applicant AND: NURSES BOARD OF VICTORIA First Respondent FORMER MINISTER FOR HEALTH/CURRENT MINISTER FOR EDUCATION BRONWYN PIKE Second Respondent JUDGE: MIDDLETON J DATE: 18 october 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 14 September 2007 the Court ordered that the applicant's motions, notices of which were dated 22 September 2006, 3 October 2006, 31 October 2006, 27 February 2007 and 28 May 2007, be dismissed and that the application for leave to file the application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) out of time be refused. 2 I directed the parties to file submissions as to costs. 3 The first respondent sought that the applicant pay the first respondent's costs of the proceeding, other than those costs dealt with in the orders made on 5 April 2007. The second respondent sought no order as to costs. The applicant sought orders as to costs against both respondents, and also Russell Kennedy. 4 Other than those matters already dealt with on 5 April 2007, the respondents have been successful in resisting the application and the applicant's various notices of motion brought in this proceeding: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449. The Court has already made costs orders in respect of the issues decided in the applicant's favour on 5 April 2007. 5 The first respondent submits that the usual rule that costs should follow the event in respect of the matters decided on 14 September 2007 should be applied. 6 The discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) is a wide and comprehensive one – attempts to narrow the discretion have not been successful: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496; Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 at [5]. 7 The discretion is not unfettered – it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485. 8 Pursuant to my direction, the applicant filed written submissions as to costs. In essence, many of the claims made in these submissions were a reiteration of the claims made in the proceedings before me, which claims were unsuccessful. I need not rehearse all the allegations asserted in the written submissions of the applicant. 9 I find that the applicant has not shown anything in the behaviour or actions of the respondents or Russell Kennedy in connection with these proceedings which would be a basis for departing from the usual rule that the applicant (as the unsuccessful party) pay the costs of the first respondent (a successful party). I find no basis for ordering that either the respondent or Russell Kennedy pay the costs of the applicant, and refuse the applicant's application for costs. 10 Accordingly, I will order that the applicant pay the first respondent's costs of the proceeding. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 18 October 2007 Counsel for the Applicant: Self-represented Counsel for the First Respondent: T Cordoner Solicitor for the First Respondent: Russell Kennedy Counsel for the Second Respondent: L De Ferrari Solicitor for the Second Respondent: Victorian Government Solicitor's Office Date of Hearing: 14 September 2007 Date of Judgment: 18 October 2007