Background
On 28 September 2026, the Court dismissed proceedings brought by Michael Lee and Result Strata Management Pty Ltd (in liquidation) against the Commissioner for Fair Trading and Carly Murtha. It made no costs order concerning the company or between Mr Lee and Ms Murtha, but ordered Mr Lee to pay the Commissioner’s costs, subject to written submissions seeking a different costs order.
Mr Lee sought to vary that order. He relied principally on his inability to meet a substantial costs liability, the public-law character of the claim, the late service and partial exclusion of an affidavit by Aiman El-Roubaei, the company’s separate claim, and the fact that a two-day hearing concluded within about three hours on the first day.
The Court’s Holding
Elkaim AJ largely refused to vary the costs order. Mr Lee’s impecuniosity was not, without more, a reason to displace the ordinary consequence that an unsuccessful plaintiff pays the successful party’s costs. Although the proceeding challenged the exercise of statutory power and was not found to be vexatious or abusive, Mr Lee’s challenge to the search warrant was out of time and substantively without foundation.
The Court made one limited variation: the Commissioner could not recover the costs of preparing Mr El-Roubaei’s affidavit dated 3 September 2026, which had been served reasonably close to the hearing and was not wholly read. The Commissioner was already not entitled to costs incurred in respect of the company’s claim, and any overlap was for a costs assessor to distinguish. Completing the hearing in one day, and the Commissioner’s access to Crown Solicitor representation, did not justify further variation. Costs were to be assessed on the ordinary party-party basis.
Key Takeaways
- Impecuniosity alone does not justify withholding an adverse costs order from an unsuccessful litigant.
- A court may make a targeted costs adjustment for work on late-served material that was not permitted to be fully read.
- Costs attributable to a separate plaintiff remain excluded where no costs order was made against that plaintiff.
Why It Matters
The decision reinforces the ordinary costs principle in public-law litigation: the fact that a claim challenges government action, or that the losing party is an individual facing a public authority, does not itself displace the usual rule that costs follow the event.
It also shows the Court’s willingness to tailor costs orders to a discrete procedural unfairness without reopening the overall allocation of costs.