Kvelde v State of New South Wales (No 2) [2024] NSWSC 196

Kvelde v State of New South Wales (No 2) [2024] NSWSC 196

Order 4 should not be varied because, viewed broadly and impressionistically, the parties had mixed success over major issues of importance and their costs entitlements were equivalent. The plaintiffs succeeded on standing and on the invalidity of subs 214A(1)(d) and part of subs 214A(1)(c), but the State succeeded on the administrative law challenge, on the validity of subss 214A(1)(a), (b) and part of (c), and on some aspects of the structured proportionality analysis. The attribution of time and ambit of submissions were not significantly different, and the standing issue did not justify the plaintiffs' proposed costs order.

Jurisdiction
Australia
Judgment Date
05 March 2024
Procedural Posture
Costs Application to Vary Costs Order / On the Papers After Primary Judgment
Outcome
Application to vary the costs order refused; order 4 remains unaltered and each party is to pay their own costs.
Legal Topics
['costs Apportionment' 'mixed Success' 'implied Freedom of Political Communication' 'standing' 'validity of Legislation and Regulation']
['costs' 'civil Procedure' 'constitutional Law' 'administrative Law'] ['costs Apportionment' 'mixed Success' 'implied Freedom of Political Communication' 'standing' 'validity of Legislation and Regulation']

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Procedural Posture

Costs Application to Vary Costs Order / On the Papers After Primary Judgment

Legal Issues

  1. 1 ['Whether order 4 of the primary judgment, that each party pay their own costs, should be varied.' 'Whether costs should be apportioned because the parties had mixed success in the primary judgment.' "Whether the plaintiffs' success on standing and parts of the constitutional challenge justified an order that the State pay 50% of the plaintiffs' costs." "Whether the State's success on the administrative law challenge and parts of the constitutional challenge justified maintaining order 4 or, alternatively, ordering the plaintiffs to pay 25% of the State's costs."]

Ratio Decidendi

Order 4 should not be varied because, viewed broadly and impressionistically, the parties had mixed success over major issues of importance and their costs entitlements were equivalent. The plaintiffs succeeded on standing and on the invalidity of subs 214A(1)(d) and part of subs 214A(1)(c), but the State succeeded on the administrative law challenge, on the validity of subss 214A(1)(a), (b) and part of (c), and on some aspects of the structured proportionality analysis. The attribution of time and ambit of submissions were not significantly different, and the standing issue did not justify the plaintiffs' proposed costs order.

Court Disposition

Application to vary the costs order refused; order 4 remains unaltered and each party is to pay their own costs.

Orders

  • ['Order 4 remains unaltered.' 'Each party to pay their own costs.']