Federal Court (Full Court). The appellant Minister sought to set-off a costs order made in the respondent non-citizen's favour out of a costs order made in the Minister's favour in previous court proceedings. Did the primary judge's exercise of discretion, refusing to allow the offset costs because this would discourage lawyers from acting on a conditional basis, miscarry?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the relevant conduct for the purposes of considering whether costs should be assessed on an indemnity the conduct of the relevant party "as litigant"?
Question 2: If the answer to Question 1 is 'yes', may there nevertheless be circumstances where "facts connected with or leading up to the litigation" can be taken into account in determining the basis on which an award of costs should be made ?
Question 3: Did the primary judge's exercise of discretion to refuse to offset costs miscarry?
The FCFCA answered those questions as follows: