72 Secondly, if the respondent succeeds in this proceeding, it will be because the applicant has not established her case for judicial review. That being so, it cannot be that the respondent has "caused" its own costs burden.
73 Thirdly, if the respondent succeeds in this proceeding on the basis of reasons it has not provided to the applicant then, to the extent that that matter is relevant to the consideration of costs, the applicant can advance it at the appropriate time. It is not a reason for making a costs-capping order.
74 Fourthly, the fact that a respondent chooses to defend a proceeding does not, without more, mean that, in doing so, it will not incur costs fairly and reasonably in the conduct of the litigation.
75 Fifthly, the applicant's reliance on the opinion rule in the Evidence Act is misconceived and inapposite.
76 There are other difficulties with the application for a costs-capping order. Rule 40.51 does not permit a "unilateral" costs-capping order, such as the applicant seeks. The order must apply in favour of both parties and cannot be made solely for the benefit of one party to the proceeding: Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [10]; McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [70].
77 Further, it is inappropriate to cap the respondent's recoverable costs at "$0". The effect of such an order would be to insulate the applicant from all risks of the litigation she has commenced. This is not the intended purpose of an order made under r 40.51. Such an order would be manifestly unjust to any respondent who is an unwilling party to the litigation and who reasonably incurs legal costs in conducting its defence.
78 I decline to make the order that the applicant seeks.
DISPOSITION
79 The applicant has failed in seeking an order that she be identified in this proceeding by a pseudonym and not by her full name, and in seeking a costs-capping order. She has also failed in opposing the change of the respondent's name.
80 The applicant must pay the respondent's costs of all applications.
