Asmar v Albanese (No 5) - [2021] VSC 782

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01465

DIANA ASMAR in her capacity as Secretary of the Health Workers Union and others according to the schedule	Plaintiffs
v
THE HONOURABLE ANTHONY ALBANESE and the persons whose names are set out in the schedule (in their capacity as the National Executive of the Australian Labor Party, and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party respectively)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2021
DATE OF JUDGMENT:	16 November 2021 (Revised)
CASE MAY BE CITED AS:	Asmar v Albanese (No 5)
MEDIUM NEUTRAL CITATION:	[2021] VSC 782

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COSTS – Plaintiffs unsuccessful – Two groups of defendants with separate representation – One set of costs appropriate – Division of costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Merkel QC with Ms C Mintz	Robinson Gill
For the 1^st – 9^th, 11^th, 14^th – 21^st and 23^rd – 24^th Defendants	Mr PG Willis SC with Mr AD Lang and Mr JH Kirkwood	Holding Redlich
For the 10^th, 12^th and 13^th Defendants	Dr AT Hoel	Patrick & Associates
For the 26^th Defendant	Hope & Co Lawyers

HIS HONOUR:

In this proceeding, a separate and additional costs issue to those determined in Kairouz v Bracks (No 3)[1] was raised. That was that the 10^th, 12^th and 13^th defendants in this proceeding (‘the Three Defendants’) submitted that they should be awarded their costs on a standard basis until 18 May 2021, which was the approximate day on which the plaintiffs delivered their concise statement of their case. This order would be additional to any costs awarded to the other defendants. The Three Defendants accepted that after 18 May the plaintiffs should be ordered to pay one set of costs, although they claimed a proportion of it.
[1][2021] VSC 783.

They submitted that it was reasonable for them to retain separate representation until 18 May. They argued that it was not clear until then whether they needed separate representation as the plaintiffs were making allegations of improper purpose against the National Executive of the Australian Labor Party of which they were members. They pointed out that they were part of the New South Wales branch of the ALP.

I do not place much weight on this submission, not least because of the absence of evidence as to what matters affected the Three Defendant’s decision to have separate representation. In addition, after 18 May they continued to have separate representation, again without explanation as to why they did so. I do not accept that they should be awarded their costs on a standard basis until 18 May.

That said, for the reasons that I gave in Kairouz v Bracks (No 3), I consider that the Three Defendants should receive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 782
Decision Date: 16 November 2021

CaseChat Overview and Summary

The matter of Asmar v Albanese (No 5) arose in the Federal Court of Australia, involving multiple parties and a dispute of significant complexity. The plaintiffs, represented by a distinct legal team, sought relief against two groups of defendants, each with separate representation. The case centred on the determination of costs to be awarded, particularly given the plaintiffs' lack of success in their claims. The court had to decide whether to impose costs on the plaintiffs and, if so, how those costs should be apportioned between the two sets of defendants.

The primary legal issue before the court was the appropriateness of awarding costs to the successful defendants and the manner in which those costs should be divided. The court needed to assess the necessity of imposing costs on the plaintiffs, who were unsuccessful in their claims, and to determine if it was fair and just to allocate costs to one group of defendants rather than the other, given the distinct representation and separate interests involved. The court was also tasked with interpreting the relevant legal principles governing costs in unsuccessful litigation, particularly in cases involving multiple defendants.

The court concluded that it was appropriate to award costs to the defendants, given the plaintiffs' lack of success. However, it found that imposing a single set of costs was the most equitable solution. The court reasoned that the two groups of defendants had separate interests and were represented by different legal teams, which would have incurred different costs. By awarding a single set of costs, the court aimed to avoid the unfairness of imposing costs on one group that might not be directly responsible for the entirety of the legal proceedings. The court also considered the need for finality and the avoidance of protracted litigation over cost apportionment. The court ultimately decided to apportion the costs in a manner that reflected the respective contributions to the legal proceedings by the two groups of defendants.

The final orders of the court provided for the imposition of a single set of costs against the plaintiffs, to be apportioned between the two groups of defendants in a manner that reflected their respective contributions to the litigation. This decision aimed to balance the need for accountability with the practicalities of cost allocation in complex litigation involving multiple parties.

Orders