Bateman And Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited And Ors [No 2]
[2013] ACTSC 95
•17 June 2013
BATEMAN AND IDAMENEO (NO 123) PTY LIMITED V FAIRFAX MEDIA PUBLICATIONS PTY LIMITED AND ORS [NO 2]
[2013] ACTSC 95 (17 June 2013)
COSTS – generally – purpose of awarding costs
COSTS – generally – discretion of the courts in awarding costs – wide discretion available
COSTS – awarding of costs of interlocutory applications – approach to awarding the costs of interlocutory applications
COSTS – awarding of costs of interlocutory applications – where the interlocutory application is a transfer application – successful transfer application – no settled approach
COSTS – awarding of costs of interlocutory applications – where the interlocutory application is a transfer application – successful transfer application – application is “part and parcel of the interlocutory steps of the proceeding” – costs in the application are the applicant’s costs in the cause
Court Procedures Rules 2006 (ACT) rr 1701, 1721
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) ss 5, 12
Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57
Asia Gold Mining Corp NL v Gray Eisdell Timms Pty Ltd (Unreported, Supreme Court of Queensland, Ambrose J, 21 September 1999)
Bainton v Sheahan (Unreported, Supreme Court of New South Wales, Hunt J, 2 March 1990)
Bakers Delight (WA) Pty Ltd v Westpoint Corporation Pty Ltd [2000] VSC 192
Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
British American Tobacco Australia Services Ltd v Laurie [2009] NSWSC 83
Broken Hill Proprietary Co Ltd trading v Zanic (2001) 22 NSWCCR 92
Byrne v Australian and New Zealand Banking Group Ltd [2013] FCA 233
Dawson v Baker (1994) 123 FLR 194
Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132
Donald Campbell & Co Ltd v Pollack [1927] AC 732
Dubbo Refrigerating Co v Rutherford (1898) 14 WN(NSW) 180
Dye v Commonwealth Bank of Australia [2010] NSWSC 1237
Edenmead Pty Ltd v Commonwealth of Australia (1984) 4 FCR 348
Farrelly v Mataranka Homestead Tourist Resort Pty Ltd [1999] VSC 13
Freeman v Kellerberrin Farmers Co-operative Company Ltd [2003] NSWSC 1105
Harold v Smith (1860) 5 H & N 381
Hayward v Barratt [2000] NSWSC 708
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357
Khoury v Commonwealth Bank of Australia [2013] FCA 304
Koltai v World Dot Net Holdings Pty Ltd [1999] NSWSC 830
Laoulach v Lee Commercial Investments [2006] NSWSC 547
Latoudis v Casey (1990) 170 CLR 534
McLaughlin v City Bank of Sydney (1916) 16 SR(NSW) 491
O’Keeffe Nominees Pty Ltd v BP Australia Ltd [No 2](1995) 55 FCR 591
Oshlack v Richmond River Council (1998) 193 CLR 72
Paccar Financial Pty Ltd v Menzies [2009] VSC 643
Packer v John Fairfax Publications Pty Ltd [2000] ACTSC 101
Ritter v Godfrey [1920] 2 KB 47
Robbins v Sons of Gwalia Ltd [2009] FCA 96
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 14) [2011] FCA 1277
Valceski v Valceski (2007) 70 NSWLR 36
Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1
Woodham v Medina Group Pty Ltd [2005] ACTSC 92
No. SC 826 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 17 June 2013
IN THE SUPREME COURT OF THE )
) No. SC 826 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:EDMUND THOMAS GREGORY BATEMAN
First Plaintiff
AND:IDAMENEO (NO 123) PTY LIMITED (ACN 002 968 185)
Second Plaintiff
AND:FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)
First Defendant
AND:FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LIMITED (ACN 087 887 456)
Second Defendant
AND: NATASHA WALLACE
Third Defendant
AND: VANDA CARSON
Fourth Defendant
AND: JEREMY CUMPSTON
Fifth Defendant
ORDER
Judge: Refshauge J
Date: 17 June 2013
Place: Canberra
THE COURT ORDERS THAT:
The costs of the application for transfer of these proceedings including the costs of the submissions on costs be the defendants’ costs in the cause.
On 26 April 2013, I ordered that these proceedings be transferred to the Supreme Court of New South Wales under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT): Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72.
The application, made by the defendants, was resisted by the plaintiffs.
I did not make an order for costs but invited the parties to make submissions on the orders I should make.
The defendants submitted that the plaintiffs should pay the defendants’ costs of the application.
The plaintiffs submitted that the costs should be each party’s costs in the cause or, alternatively, that the costs should be reserved.
CONSIDERATION
Costs are an indemnity for a party who or which has been put to expense in litigation which the court has decided is not successful, either in law or in fact, and are not a punishment of or penalty to the unsuccessful party: Harold v Smith (1860) 5 H & N 381 at 385; 157 ER 1229 at 1231; Latoudis v Casey (1990) 170 CLR 534 at 562-3.
The court has a wide discretion as to the orders it may make as to costs. Rule 1721 of the Court Procedures Rules 2006 (ACT) makes that plain. Indeed, high authority has suggested that the discretion is absolute and unfettered: Donald Campbell & Co Ltd v Pollack [1927] AC 732 at 808-12. Dawson J in Latoudis v Casey at 557, described the discretion in just those words, noting that, of course, the discretion had to be exercised judicially.
There is no doubt, however, that there is a settled practice that a successful litigant should be compensated with an order for costs: Ritter v Godfrey [1920] 2 KB 47 at 52-3. This practice, however, is, as the High Court has clearly said in Oshlack v Richmond River Council (1998) 193 CLR 72 at 88, not an “absolute rule”. It cannot fetter the proper exercise of the discretion.
The application for transfer of proceedings was an interlocutory application. The general rule for such application is set out in r 1721(2) of the Court Procedures Rules, namely that the costs of an interlocutory application are included in the costs of the whole proceeding unless the court otherwise orders.
This is not the only consideration, however, and other matters may also be relevant. This is recognised in the Court Procedures Rules where r 1701 provides that it may be ordered that the costs of interlocutory applications not be assessed until the proceedings end. It has also been recognised, as stated by Higgins J in Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132 at 140, that:
[i]t is important to bear in mind in the case of any interlocutory application that the final result of the action may reveal that a successful party in relation to such an application has no merits in relation to the action.
Thus, it is not infrequent that costs of interlocutory applications will, as well as being ordered to be paid by one of the parties, be ordered to be:
· costs in the cause, that is, the party ultimately successful in the action recovers its costs of the interlocutory proceedings (Dubbo Refrigerating Co v Rutherford (1898) 14 WN(NSW) 180 at 182) because justice requires that in that case, the party who bears the interlocutory costs be determined by the outcome of the overall proceedings in which the application was made (O’Keeffe Nominees Pty Ltd v BP Australia Ltd [No 2](1995) 55 FCR 591 at 598); or
· costs reserved, that is, the costs are not included necessarily in the costs of the overall proceedings, but are subject to a special order once the outcome is known (McLaughlin v City Bank of Sydney (1916) 16 SR(NSW) 491 at 493-4), because the just order cannot be known until the outcome of the proceedings is known (Dibeek Holdings Pty Ltd v Notaras at 140).
A variant on the order that they be costs in the cause is where the costs are ordered to be a particular party’s costs in the cause where, if that party succeeds in the overall proceedings, it recovers the costs of the interlocutory application, but if it does not succeed, it does not recover those costs but does not have to pay the other party’s costs of the interlocutory application, as identified by Spender J in Edenmead Pty Ltd v Commonwealth of Australia (1984) 4 FCR 348 at 355.
Prima facie, it might be said that an application such as the transfer application with which I dealt is no different from other applications and is subject to the usual approach. Thus, in Koltai v World Dot Net Holdings Pty Ltd [1999] NSWSC 830 at [9], Santow J said:
As to costs, while these ordinarily would follow the event, here I am dealing with an interlocutory application in circumstances where the relevant facts have not been tested with the rigour that might have been appropriate were I not concerned about proportionality in costs. Given the circumstances, I order that costs be reserved.
See, to the same effect, British American Tobacco Australia Services Ltd v Laurie [2009] NSWSC 83 at [56].
A variety of orders have, however, been made in applications for a transfer of proceedings. This is not unexpected.
Where the application is dismissed, the applicant is most commonly ordered to pay the respondents costs. See Dawson v Baker (1994) 123 FLR 194 at 209; Hayward v Barratt [2000] NSWSC 708; James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; Broken Hill Proprietary Co Ltd v Zanic (2001) 22 NSWCCR 92. This is not directly relevant to these proceedings.
Where, however, a transfer is ordered, the costs orders vary, as follows:
(a) an unsuccessful opposing party may be ordered to pay the costs of the application, as in Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1; Bainton v Sheahan (Unreported, Supreme Court of New South Wales, Hunt J, 2 March 1990); Valceski v Valceski (2007) 70 NSWLR 36;
(b) a successful applicant may be ordered to pay some costs, as in Dye v Commonwealth Bank of Australia [2010] NSWSC 1237, being the costs wasted by proceedings commenced in an inappropriate court and the lateness of the application, though this was a special case where the plaintiff applied for the transfer;
(c) costs may be reserved to the trial court, as in Koltai v World Dot Net Holdings Pty Ltd; Asia Gold Mining Corp NL v Gray Eisdell Timms Pty Ltd (Unreported, Supreme Court of Queensland, Ambrose J, 21 September 1999);
(d) perhaps most commonly, costs may be ordered to be costs in the cause, as in Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57; Packer v John Fairfax Publications Pty Ltd [2000] ACTSC 101; Laoulach v Lee Commercial Investments [2006] NSWSC 547; Paccar Financial Pty Ltd v Menzies [2009] VSC 643; Robbins v Sons of Gwalia Ltd [2009] FCA 96; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 14) [2011] FCA 1277; Byrne v Australian and New Zealand Banking Group Ltd [2013] FCA 233; Khoury v Commonwealth Bank of Australia [2013] FCA 304.
In many of these cases, there is little or no discussion of any principles, factors or other matters that inform the decision as to costs, a point noted by the defendants in their submissions.
The plaintiffs submit, on the basis of the cases referred to in [16](d) above and two others, namely Bakers Delight (WA) Pty Ltd v Westpoint Corporation Pty Ltd [2000] VSC 192 and Freeman v Kellerberrin Farmers Co-Operative Co Ltd [2003] NSWSC 1105, that the order should be that the costs be costs in the cause.
However, the only support these decisions really supply is that they are numerous. That is not to be completely ignored.
The defendants submit, on the other hand, that it is not to the point that in other cases, an order that costs be costs in the cause has been made because the other cases do not establish a particular approach.
In some cases, however, there are some helpful comments. In Woodham v Medina Group Pty Ltd [2005] ACTSC 92, it was clear that the artificiality of the proceedings being commenced in this Territory, though strictly within the jurisdiction of this Court, appears to have led Connolly J to order the respondent pay the applicant’s costs of the successful transfer application.
In Paccar Financial Pty Ltd v Menzies, Habersberger J said (at [34]):
In terms of the costs of today, I do regard an application such as this as one that is part and parcel of the interlocutory steps of the proceeding. Mr McInnis urged that it was a discrete proceeding, and that costs should follow the event. In my view, the costs of this application should be allocated in accordance with the final determination of the proceeding. I will order that the costs of and incidental to today’s hearing be costs in the cause.
I have to say with respect that this reasoning seems sound.
The proceedings in this case were regularly commenced in this Court, where many such actions have been heard in the past, but the venue was changed because a consideration of relevant factors revealed it was in the interests of justice to do so.
The approach of Habersberger J, namely, to include the costs of the application as part of the ordinary interlocutory steps to bring the matter to trial, does seem to me to be a just approach.
The correctness of adopting this approach is reinforced by the reasoning of Beach J in Farrelly v Mataranka Homestead Tourist Resort Pty Ltd [1999] VSC 13 at [12]:
It was quite open to the plaintiff to institute her proceeding in this State because this court has the jurisdiction to determine her proceeding. In that regard see Breavington v Godleman (1988) 169 CLR 41. Accordingly, in my view she should not be penalised by an order for costs against her. In the circumstances I consider that the appropriate order to make in respect of the costs of the application is that each party’s costs be their and its costs in the cause.
This approach was adopted in this court by Crispin J in Packer v John Fairfax Publications Pty Ltd.
The defendants, however, submit I should treat these decisions with caution as they were decided before BHP Billiton Ltd v Schultz (2004) 221 CLR 400, where, as I noted in Bateman v Fairfax Media Publications Pty Ltd at [68](d), the High Court had specifically held that no particular weight should be given to the plaintiffs’ choice of forum. That is to be accepted, of course, as well as the consequence that earlier decisions before the High Court so decided must be approached with caution because of this change in approach.
I am not satisfied, however, that the High Court held that the plaintiffs’ invocation of a regular jurisdiction was irrelevant for all purposes and I do not see that in any of the statements of their Honours about this issue.
The defendants also, having referred to the various ACT decisions cited, submit, quite accurately, that “at least in the ACT, there is no particular approach” to costs of such applications.
Nevertheless, the cross-vesting legislation of this Territory is part of a uniform scheme of legislation and I do not consider that States or Territories should develop idiosyncratic approaches to it or any part of it, such as with the awarding of costs. Indeed, a uniform approach is what is required. It is, however, not easy to see a uniform approach.
The plaintiffs submitted that if I was not amenable to ordering that the costs be costs in the cause, I should reserve the question of costs to the trial judge, as the witnesses who were located in New South Wales, a relevant consideration in my decision, may ultimately not be called to give evidence and this may affect the costs decision.
Whilst, in coming to my decision to order the transfer of the proceedings, I was influenced by the preponderance of witnesses in New South Wales, it was by no means the only or an overriding factor. The proceedings are at an early stage of preparation. There may be changes and developments that lead to some witnesses, who are otherwise likely to be called, not ultimately being called, for good reason. I do not think that necessarily affects the nature of the decision.
This is quite a different situation than that referred to in Koltai v World Dot Net Holdings Pty Ltd. I do not consider that the quite unlikely situation, where the defendants may not call any of the witnesses to which they referred in their application, would justify deferring the decision as to costs to the trial judge.
CONCLUSION
The plaintiffs regularly invoked the jurisdiction of this Court. The interests of justice required that the proceedings be transferred to the Supreme Court of New South Wales.
While the usual factors, such as principal place of publication, residence of the parties and the location of relevant witnesses, all pointed towards the interests of justice requiring a transfer of the proceedings to New South Wales, there was a legitimate basis on which the plaintiffs sought to justify their choice of forum, namely that there were relevant stakeholders in the Territory, which was not unsupported by authority.
Nevertheless, it is fair to describe the evidence in support of the plaintiff’s approach as thin, even though the authorities have recognised that some of the strength of the usual factors may now be reconsidered in the light of modern technology.
This leads me to consider that, following the approach of Habersberger J in Paccar Financial Pty Ltd v Menzies, the application is part of the ordinary interlocutory decisions to be made in the course of the proceedings.
Having said that, however, the conduct of the application does not leave me with the opinion that, if the plaintiffs are successful in the proceedings, the defendants should have to pay them the costs of the application.
Accordingly, I will order that the costs of the application be the defendants’ costs in the cause.
I notice that in Freeman v Kellerberrin Farmers Co-operative Company Ltd at [17], Shaw J also ordered that “the costs of the proceedings [in the transferring court] be costs in the transferred proceedings.” That is probably not necessary here because of s 12 of the Jurisdiction of Courts (Cross-Vesting) Act or the NSW equivalent (or both).
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate: Stephen Priest
Date: 2013
Counsel for the plaintiffs: Mr B R McClintock SC and Ms S T Chrysanthou
Solicitor for the plaintiffs: Gilbert + Tobin
Counsel for the defendants: Mr A T S Dawson
Solicitor for the defendants: DLA Piper Australia (agents for Banki Haddock & Fiora)
Written submissions: 22 May 2013, 6 June 2013
Date of judgment: 17 June 2013
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