Australia and New Zealand Banking Group Limited v Paciocco

The case of Australia and New Zealand Banking Group Limited v Paciocco involved a dispute between the bank and the respondents, Paciocco, regarding the costs incurred in retaining expert witnesses. The matter was heard in the Federal Court of Australia. The respondents sought to vary an order that provided for costs at first instance. Specifically, they sought an order that the costs of retaining three expert witnesses should be included in the successful appellant's costs. The legal issues before the court were whether there were grounds for an inquiry under Federal Court Rules 2011 (Cth) r 40.06 or for referring the question back to the primary judge, and whether the costs of retaining the experts should be included in the costs of the successful appellant.

The court held that there were no grounds for ordering an inquiry or for referring the question back to the primary judge. The court also determined that the costs of retaining two of the experts should be included in the costs of the successful appellant. The court noted that its conclusions and order clearly bound the parties, but clarified that its decision did not impinge on the normal rights of the parties on a taxation of costs. The court made several orders, including granting leave to amend an interlocutory application and varying an earlier order to set aside a previous costs order and substitute it with a new order. The new order provided that the respondents pay the costs of the proceeding at first instance and the costs of the preparation of an expert report, and that the respondents pay 95% of the appellant’s costs of the interlocutory application.