When are there special circumstances to depart from usual rule as to costs?

May, 2015

Key points:

It is generally the case that the primary factor in deciding the question of the award of costs is the outcome of the litigation. That is, the unsuccessful party will usually be required to pay the successful party’s costs of the proceedings and the courts will only depart from this rule if special circumstances are shown to exist.[1]

Although there is no exhaustive list of matters that may constitute “special circumstances”, the recent Full Court decision in Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 (Plaintiff B9/2014) provides further guidance on the type of matters that may warrant a departure from the usual rule.

In Plaintiff B9/2014, the appellant was a minor who unsuccessfully (at both first instance and on appeal) sought judicial review of a decision made by a delegate of the respondent his application for a protection visa was invalid. In relation to the issue of costs, the appellant argued that the following “special circumstances” warranted the Court ordering that there should be no order as to the costs of the appeal:

a. It was necessary for the litigation guardian (the appellant’s mother) to commence the proceedings as the infant
appellant was incapable of otherwise protecting his own interests.
b. The proceedings raised novel and important questions of law concerning the deprivation of liberty of an individual
and the operation of the Migration Act.
c. Parliament passed laws after the proceeding was on foot restricting the appellant’s further avenue of appeal or other
judicial review.
d. There was no potential financial gain to either the appellant or his mother as litigation guardian.
e. The appellant’s legal representation was provided on a pro bono basis.


The Full Court was not satisfied that these matters constituted special circumstances. In particular, the Full Court held that:

As can be seen from the Full Court’s decision, it is a high bar to overcome to persuade the court to depart from the usual rule that costs follow the event. The special circumstances required to depart from this rule will only arise in rare cases, such as where the matter concerns issues of high public importance and/or the liberty of individuals who were unable to take action on their own behalf to determine their rights.[4]

Contact Mills Oakley

For more information, please contact:


Rohan White | Partner
T: +61 2 8289 5863
E: rwhite@millsoakley.com.au



Nicola Johnson | Special Counsel
T: +61 2 8035 7908
M: +61 407 937 286
E: njohnson@millsoakley.com.au


[1] See Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [11]; Oshlack v Richmond River Council (1998) 193 CLR 72, 97 (McHugh J) and 120-123 (Kirby J); Seven Network Ltd v News Ltd 2009) 182 FCR 160, 403; State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]-[7]; and Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 139 at [6].

[2] See, for example, Oshlack v Richmond River Council op. cit; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91, 95.

[3] See, for example, Microsoft Corporation v Marks (No 2) (1996) 69 FCR 144 at 146 (Lindgren J, with whom Beaumont and Lehane JJ agreed); Gondarra at [13] (Kenny J)

[4] As occurred, for example, in Ruddock v Vadarlis (No 2) op. cit.

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