Brosnan v Katke

[2016] FCAFC 156

FEDERAL COURT OF AUSTRALIA

Brosnan v Katke [2016] FCAFC 156

Appeal from:

Brosnan v Katke [2016] FCA 717

File number:

QUD 512 of 2016

Judges:

DOWSETT, GLEESON AND EDELMAN JJ

Date of judgment:

9 November 2016

Catchwords:

COSTS – appeal from order to pay costs assessed on indemnity basis – appeal from discretionary decision – no error of principle by primary judge – appeal dismissed

Cases cited:

Black v Lipovic [1998] FCA 699; (1998) 217 ALR 386

Brosnan v Katke (No 2) [2015] FCA 386

Brosnan v Katke [2014] FCA 974

Carey v Freehills [2013] FCA 1258

House v R [1936] HCA 40; (1936) 55 CLR 499

SzencorpPty Ltd v Clean Energy Council Limited (No 2) [2009] FCA 196

Veda Advantage Limited v Malouf Group Enterprises Pty Limited (No 2) [2016] FCA 470; 118 IPR 156

Date of hearing:

9 November 2016

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

22

Counsel for the Appellants:

Mr MD Martin QC with Ms A Nicholas

Solicitor for the Appellants:

Mills Oakley

Counsel for the Respondents:

Mr W Sofronoff QC with Mr A Pokmerenke QC

Solicitor for the Respondents:

Johnson Winter & Slattery

ORDERS

QUD 512 of 2016

BETWEEN:

MICHAEL BROSNAN

First Appellant

LEON BROSNAN

Second Appellant

MARY BROSNAN (and others named in the Schedule)

Third Appellant

AND:

JEFFREY JAMES KATKE

First Respondent

METAGENICS AUSTRALIA PTY LTD ACN 113 937 572

Second Respondent

METAGENICS, INC. (and others named in the Schedule)

Third Respondent

JUDGES:	DOWSETT, GLEESON AND EDELMAN JJ
DATE OF ORDER:	9 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

1. I agree with the judgment of Gleeson J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:        

Dated:        15 November 2016

REASONS FOR JUDGMENT

GLEESON J:

1. This is an appeal from a decision to order the appellants to pay costs assessed on an indemnity basis from the date of their rejection of a Calderbank offer: Brosnan v Katke [2016] FCA 717.

2. There were numerous matters which were common ground. The background to the Calderbank offer was common ground. It was recited in the primary judge’s judgment and there is no dispute about that. The parties also are not in dispute about the appropriate legal principles for the award of indemnity costs in this scenario.

3. The appeal is from a discretionary decision. Accordingly, it is necessary for the appellants to identify an error of principle in the decisions of the primary judge: cf House v R [1936] HCA 40; (1936) 55 CLR 499 at 506. The appellants contended that the primary judge had made an error of principle because, they argued, his Honour determined the question whether the appellants had acted…