Australian Competition and Consumer Commission v Boral Ltd - [2007] FCA 14

FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Boral Ltd [2007] FCA 14
COSTS – Application to set aside subpoena – costs of application – ordered as between “solicitor and client” – meaning of – distinction with other methods of assessing costs
5 Eliz, c.9 1562 (Imp) s 12
Federal Courtof Australia Act 1976 (Cth)
Legal Profession Act 2004 (Vic), s 3.4.18
Federal Court Rules O 27 r 11, O 62 rr 12, 39(3)
Australian & New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 cited
Bank of New South Wales v Withers (1981) 35 ALR 21 cited
Bouras v Grandelis [2005] NSWCA 463 applied
Danieletto v Khera (1995) 35 NSWLR 684 cited
Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996) cited
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 applied
Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536 cited
Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 cited
Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 cited
Gibbs v Gibbs [1952] P 332 cited
Giles v Randall [1915] 1 KB 290 cited
Goodwin v Storrar [1947] 1 KB 457 applied
J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996 cited
King v GIO Australia Holdings Ltd (2001) FCA 1773 cited
Knight v F P Special Assets Ltd (1992) 174 CLR 178 cited
Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991) cited
Milosevic v Government Insurance Office of New South Wales (1993) 31 NSWLR 323 referred to
O’Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591 cited
Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464 cited
Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681 approved
Reed v Gray [1952] Ch 337 cited
Smith v Smith [1906] VLR 78 cited
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BORAL LIMITED
VID 699 of 2004
FINKELSTEIN J
22 JANUARY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 699 of 2004

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

BORAL LIMITED
Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

22 JANUARY 2007

WHERE MADE:

MELBOURNE

THE COURT ANSWERS THE QUESTIONS REFERRED AS FOLLOWS:
1.If the court makes an order as in the present case that a party’s costs be taxed on a solicitor/client basis -
(a)Is the taxing officer constrained by O 62 r 12(1) (which applies because of O 27 r 11(2)) to require the party with the benefit of the order to submit a bill drawn in accordance with the party/party scale in Schedule II?
Answer: No
(b)If the answer is “Yes” to (a), on what basis does the taxing officer give effect to the order that costs be taxed on a solicitor/client basis?
Answer: N/A
(c)If the answer is…

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: [2007] FCA 14
Decision Date: 22 January 2007

CaseChat Overview and Summary

In the case of Australian Competition and Consumer Commission v Boral Limited, the Federal Court of Australia addressed the issue of costs taxation in relation to subpoenas issued by Boral Limited to Nielsens Concrete Pty Ltd. The court examined whether the costs incurred by Nielsens in complying with the subpoenas could be taxed on a "solicitor and client" basis, and if so, how this should be done in accordance with the court rules. The central legal issue was whether the taxing officer could permit the party to submit a bill drawn by reference to a costs agreement between the party and their solicitor, instead of the standard scale set out in the court rules.

The court ruled that the taxing officer was not constrained by the court rules to require the party to submit a bill drawn in accordance with the party/party scale in Schedule II. Instead, the taxing officer had the authority to permit the party to submit a bill drawn by reference to a costs agreement between the party and their solicitor, provided that the taxing officer was satisfied of the reasonableness of the items claimed and the amounts charged. The court clarified that a "solicitor and client" costs order should allow the party to recover the amount they would have been compelled to pay to their solicitor for the costs of the action, as fair justice to the other party will permit. This is substantially a party and party taxation on a more generous scale. The court also noted that there is a distinction between costs orders made as between "solicitor and client" and those made on an indemnity basis.

The court concluded that the taxing officer could permit taxation of the bill by reference to any costs agreement which exists between the party in whose favor the order is made and their solicitor, provided that none of items 44 to 47 (inclusive) in Schedule II apply or have been rendered irrelevant by an order of the Court. The court's decision provided clarity on the taxation of costs in cases where subpoenas are involved, ensuring that the party is fairly compensated for the expenses incurred in compliance with the subpoena.

Orders