Adamson, P. v New South Wales Rugby League Ltd

[1992] FCA 208

JUDGMENT NO. 4387.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NO G511 of 1990

1

GENERAL DIVISION )

BETWEEN:

PHILLIP ADAMSON KEVIN MARK AFFLICK ANGEL0 ALAVANJA JASON ALCHIN GAVIN ALLEN TODD ANDERSON MICHAEL ANTHONY APPLEBY TREVOR COLIN BAILEY SCOTT ANTHONY BARRETT DAVID BAYSSARI PAUL BEAVEN JASON BELL STEVEN BENKIC BRIM BLACKMAN PHIL BLAKE ANDREW BORG DAVID JOHN BROOKS ADRIAN JOHN BUBB ROBERT DANIEL BURGESS GRANT BUTTERFIELD ANDREW CAMPBELL SANDY CAMPBELL JOHN GREGORY CARTWRIGHT SIMON CHAPPELL SHANE CHRISTENSEN VINCE CIBULIZA DARREN ANDREW CLANCY TROY JOHN CLARKE JAMES FRANCIS COWELL MICHAEL CRONIN STEPHEN ROBERT CROWE OWEN CUNNINGHAM TONY MAXWELL CURRIE PAUL DAVIES MICHAEL DELROY JAMES MICHAEL DONNELLY MATTHEW DONOHOE PAUL GERARD DOOLAN STEVE CLARENCE DOUGLAS JEFFREY DUCKER PAUL DUNN TIMOTHY JOHN DWYER COREY JOHN EDWARDS DARRIN EDWARDS JASON EDWARDS MATTHEW JAMES ELLIOTT ROBERT ANTHONY FAY SCOTT GALE DAVID OWEN GALLAGHER STEVEN GEORGALLIS GREGORY JOHN GIBSON

DAVID GILLESPIE

THOMAS

PAUL ATAN JAMES
MATT- J= JOHNS
ANTHONY KABERRY
JASON EDWARD KELLY
MATT KENNEDY
PAUL KENT
ANDREW LANGFORD
PAUL LANGMACK
BRENDON JAMES LEE

BRETT LEMAN

JONAT- M~CRAE

MITCHELL MAGUIRE
STEPHEN MAVIN
CRAIG McANDREW
MARK McDONNELL
GARRY McFARLANE

DAMIEN MC GARRY

ALAN McINDOE

MICHAEL McLEAN
SCOTT GRANT MIEN1
MARTY MOORE
STEPHEN WAYNE MORRIS
MICHAEL MOSS

ROBERTMUCHMORE

MATT MUNRO
MARK PETER MURRIGAN
DEREK NEILSON
GLEN NISSEN

RODNEY O'BRIEN
DAVID JAMES O'DONNELL
PETER RICHARD ORR
GEORDI PEATS
PETER JAMES THOMAS PHILLIPS
CRAIG POTTER

CLINT ROBINSON

MARK ROBINSON

STEPHEN ROBINSON
DANNY RODIC
SCOTT ROFE
BRETT ROLLS
STEPHEN ROSOLEN
TROY RUGLESS
GLENN RYAN
TROY SADDLER
TONY SAKR

Applicants

m:	NEW SOUTH WALES RUGBY LEAGUE LIMITED
First Respondent
BALMAIN DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED
Second Respondent
BRISBANE BRONCOS RUGBY LEAGUE FOOTBALL CLUB LIMITED
Third Respondent
CANBERRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED
Fourth Respondent

CANTERBURY BANKSTOWN RUGBY

LEAGUE CLUB LIMITED

Fifth Respondent

CRONULLA SUTHERLAND DISTRICT
RUGBY LEAGUE CLUB LIMITED

Sixth Respondent

EASTERN SUBURBS DISTRICT RUGBY
LEAGUE FOOTBALL CLUB LIMITED

Seventh Respondent

GOLD COAST SEAGULLS RUGBY LEAGUE
FOOTBALL CLUB LIMITED

Eighth Respondent

ILLZIWARRA DISTRICT RUGBY LEAGUE
FOOTBALL CLUB LIMITED

Ninth Respondent

MANLY-WARRINGAH DISTRICT RUGBY
LEAGUE FOOTBALL CLUB LIMITED

Tenth Respondent

NEWCASTLE RUGBY LEAGUE LIMITED

Eleventh Respondent

NORTH SYDNEY DISTRICT RUGBY
LEAGUE FOOTBALL CLUB LIMITED

Twelfth Respondent

PARRAMATTA DISTRICT RUGBY LEAGUE
CLUB LIMITED

Thirteenth Respondent

PENRITH DISTRICT RUGBY LEAGUE
FOOTBALL CLUB LIMITED

Fourteenth Respondent
ST. GEORGE DISTRICT RUGBY LEAGUE

FOOTBALL CLUB LIMITED

Fifteenth Respondent

SOUTH SYDNEY DISTRICT RUGBY
LEAGUE FOOTBALL CLUB LIMITED

Sixteenth Respondent

WESTERN SUBURBS DISTRICT RUGBY
LEAGUE FOOTBALL CLUB LIMITED

Seventeenth Respondent

CORAM: HILL J
M: SYDNEY
DATED: 11 MARCH 1992

EX TEMPORE REASONS FOR JUDGMENT

This matter now comes back to me, after an appeal in the full court of this court, to decide the outcome as to costs.

It will be recalled that the applicants commenced proceedings in the Industrial Commission, which proceedings were duly moved to the Supreme Court and then ultimately to this court. In respect of those proceedings in the full court the applicants were unsuccessful.

The applicants also commenced proceedings in this court, heard at the same time, both under the provisions of the Trade Practices Act 1974 (Cth) and seeking a declaration that the provisions of the draft were invalid at common law. In respect of these proceedings in the full court, the applicants failed in respect of the former and succeeded in

respect of the latter. The full court ordered that two-thirds	of the costs of the appeal be paid by the respondents before
me to the applicants.
Counsel for the applicants submitted that, notwithstanding that the applicants had been unsuccessful in the proceedings brought initially under the Industrial Arbitration Act 1940, the applicants should be entitled to the whole of their costs.
The respondents, for their part, submitted that the applicants had been successful in one only of the three issues which had been litigated and that account should be taken of this. The respondents also submitted that upwards of three days was wasted during the course of the hearing in hearing evidence given by two academic witnesses, upon whose evidence faint reliance was placed in the course of the hearings before me. It is not clear whether any reliance at all was placed on this evidence in the full court.
The parties agreed that no additional evidence was adduced in respect of either the unsuccessful claim under the Industrial Arbitration Act 1940 or the unsuccessful claim under the Trade Practices Act 1974 (Cth). The parties agree that in respect of the time spent on addresses, approximately half of that time was spent in address on the matter in which the applicants were successful and the remaining half spent in respect of the matters in which the applicants were
unsuccessful.

It has .been said that- the time involved in taking

the evidence of the experts was in the order of 3 days and that in addition there were costs wasted on the preparation of affidavits and, on taxation, no doubt, a claim would be made for the expenses of the witnesses in question.

So far as the proceedings under the Industrial Arbitration Act 1940 are concerned, I can see no reason why these proceedings should not be treated, up until at least the time of the hearing before me, as separate proceedings from the other proceedings that were brought in this court. Indeed, that is the way they originated and the way they continued until an order was made that the matters be heard together with the other matters, with evidence in one treated as evidence in the other.

On that basis, it seems to me that the proper order of costs should be that the applicants pay to the respondents the costs of and incidental to the proceedings under the Industrial Arbitration Act 1940 but not including the costs of the hearing of those proceedings. I do this because it seems to me appropriate that the additional costs created by those proceedings, in respect of which the applicants were not successful, should be borne by them. In so doing, I note the

that it was in the interests of all parties that all matters

argument that was made by senior counsel for the applicants

between them be resolved. This is true, but hardly justifies the bringing of proceedings which the full court has unanimously found not to be appropriate.

I come then to the costs of the remaining action. It is a truism that the making of an order involves an exercise of judicial discretion and, although this is so, it is only in rare and special circumstances that a successful litigant will be denied costs. Of course, each case must be examined on its merits and there are many occasions where a case has been prolonged by unnecessary argument and some cost penalty has followed, notwithstanding that the party advancing the argument is overall successful.

In other cases attempts are made, as illustrated by the decision of Gummow J in New South Wales Dairv Corporation v Murrav-Goulburn Co-operative Limited 1989 ATPR (Digest) 46-049, to do justice between the parties notwithstanding that the successful party has failed in some issues. As that case illustrates, the fact that an applicant has been successful in realising its aim in litigation may be sufficient to entitle it to costs.

So far as the trade practices claim is concerned,
while undoubtedly it was a matter which entailed no additional

evidence and involved an issue, if not novel, at least significant, the reality of the matter is that the time taken

for addresses ultimately increased by this matter being argued. No doubt it is for this reason that the full court made only a partial order for the costs incurred in the full court hearing. It seems to me, therefore, that in determining the numbers of days hearing for which the respondents should bear the applicants' costs, the additional time taken in address should be taken into account. I am told that approximately two and a half days was spent in address. In these circumstances, taking into account both the Trade Practices Act case and the extra time spent on the Industrial Arbitration Commission hearing, it seems appropriate to reduce the number of days for which the respondents are required to pay the costs by one and a quarter days.

However, although I see some merit in the submission that time was wasted on the evidence of the experts, at the end of the day it is a very difficult task for the court to assess the performance of a witness to decide that one witness is or is not ultimately useful in the course of the proceedings. If the court were to undertake such a task in ordinary cases the role would, no doubt, become very difficult indeed. This is not to say that there is a firm principle of law that the court could not undertake such a task and occasions may arise where evidence called is so inappropriate that it would be manifestly unjust for the party unsuccessfully opposing that evidence to have to pay the costs incurred incidental to that evidence. However, I do not think

the present case is quite such an extreme case and it seems to
me that the ordinary rule should prevall.

On this basis, the order I propose to make in respect of the proceedings commenced in this court would be that the respondents pay the applicants' costs limited to eleven and a quarter days of hearing. The respondents should pay the applicants' costs of today, but not including the costs of senior counsel.

I certify that this and the
preceding ten (10) pages
are a true copy of the Reasons
for Judgment herein of his Honour

Mr ~ustice Hill.

Associate:

Date: 1.1 arch 1992

Counsel and Solicitors	Mr B J Gross QC & MS J Gleeson
for Applicant:	instructed by Bush Burke & CO
Counsel and Solicitors	Mr A J Sullivan QC and L J
for Respondents:	Foster instructed by Colin W. Love & CO
Dates of Hearing:	11 March 1992
Date Judgment Delivered:	11 March 1992