Scholes v Commonwealth of Australia [2022] FCA 27

Federal Court of Australia

Scholes v Commonwealth of Australia [2022] FCA 27 File number(s): VID 480 of 2019

Judgment of: KERR J

Date of judgment: 25 January 2022

Catchwords: COSTS – application for an alternative order as to costs following judgment in Scholes v Commonwealth of Australia [2021] FCA 1593 – application rejected

Legislation: Federal Court Rules 2011 (Cth) r 40.51(2)(d)

Cases cited: Wilderness Society v Turnbull [2007] FCA 1863 Scholes v Commonwealth of Australia [2021] FCA 1593

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 26

Date of hearing: Determined on the papers

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr A Dinelli with Ms S Kearney

Solicitor for the Respondent: Maddocks Lawyers

ORDERS VID 480 of 2019

BETWEEN: ALISTAIR PETER SCHOLES Applicant

AND: COMMONWEALTH OF AUSTRALIA Respondent

order made by: KERR J DATE OF ORDER: 25 January 2022

THE COURT ORDERS THAT:

1. Without derogating from the Respondent's entitlement to enforce the orders made by consent by the Court on 23 March 2020 the Applicant shall pay the Respondent's costs of the proceeding (including any costs thrown away by reason of the Respondent providing arrangements for the Applicant to call witnesses in Nigeria) other than the costs of the trial on 5-8 October 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J: 1 On 17 December 2021 the Court published reasons in Scholes v Commonwealth of Australia [2021] FCA 1593 (the Decision). The Court ordered: 1. The Applicant's application be dismissed. 2. Unless either party advises the Court by no later than 14 January 2022 that they would seek an alternative order, the Applicant shall pay the Respondent's costs of the proceeding (including any costs thrown away by reason of the Respondent providing arrangements for the Applicant to call witnesses in Nigeria) other than the costs of the trial on 5-8 October 2021. 3. If either party seeks an alternative order as is provided for in Order 2 the parties shall have until no later than 4:00pm 21 January 2022 to file and serve any written submissions (limited to 3 pages) upon which they may seek to rely in relation to costs. 4. Unless the Court otherwise orders any question of costs so arising be determined on the papers. 2 On 10 January 2022 the Applicant, Mr Scholes, lodged a Notice of Appeal of the Decision with the Federal Court. 3 On 11 January 2022, the Applicant provided his appeal documents with a covering letter by email to the Associate to Kerr J and to the solicitor for the Respondent. The Respondent, the Commonwealth, responded to that correspondence on 14 January 2022, coping in the Applicant, and identified that the Applicant had made submissions as to costs pursuant to Order 2 of the 17 December 2021 orders within the appeal documents. The Commonwealth notified the Court that: …without conceding the bases identified by the Court at paragraph 294 of the Reasons, the Commonwealth advises that it does not propose to seek an alternative costs order to that proposed by the Court. The Commonwealth will provide its written submissions in response to Mr Scholes' submissions on the issue of costs, by 4pm 21 January 2022, in accordance with order 3 of the Orders. 4 The Commonwealth filed its submissions on 21 January 2022 as foreshadowed.