BACKOFFICE INVESTMENTS PTY LTD AND ANOR RESPONDENTS
Campbell v Backoffice Investments Pty Ltd [No 2] [2009] HCA 36 23 September 2009 S435/2008
ORDER
1. Respondents to pay appellants' costs of the proceedings in this Court.
2.The costs of proceedings in the Court of Appeal of the Supreme Court of New South Wales and of the proceedings at trial be in the discretion of the Court of Appeal.
On appeal from the Supreme Court of New South Wales
Representation
A J L Bannon SC with J T G Gibson for the appellants (instructed by Rodd Peters Commercial, Media and European Lawyers)
J T Gleeson SC with T L Wong for the respondents (instructed by Watson Mangioni Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ. On 29 July 2009, the Court published its reasons for decision in this matter. The Court made orders allowing the appeal, refusing special leave to cross‑appeal, setting aside certain of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 19 May 2008 and remitting the matter to that Court for further hearing and determination.
In the course of the hearing in this Court, the parties sought the opportunity to make further submissions as to costs after the publication of the Court's reasons. Accordingly, when making orders disposing of the appeal and the application for special leave to cross‑appeal, the Court gave directions to the parties about filing and serving written submissions about costs. Each side has now made its submissions.
There is no dispute that the appellants should have their costs of the proceedings in this Court. They differ about whether, as the respondents submitted, enforcement of the order for payment of the costs of the proceedings in this Court should be deferred until the proceedings in the Court of Appeal are completed. They further differ about what orders should be made in respect of: first, the costs of proceedings to date in the Court of Appeal, and secondly, the costs of trial.
There is no reason to make an order deferring enforcement of the order for costs in this Court.
As for the other points of difference between the parties, the appellants submit that they should have their costs for proceedings in the Court of Appeal so far. The appellants further submit they should now have an order giving them half of their costs of the trial, and that the balance of the costs of trial should be in the discretion of the Court of Appeal on remitter. By contrast, the respondents submit that the costs of the proceedings at trial and the proceedings in the…
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
AGLC
Campbell v Backoffice Investments Pty Ltd [2009] HCA 36
Case
[2009] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning costs between the appellants, Campbell and others, and the respondents, Backoffice Investments Pty Ltd and others. The dispute revolved around the appropriate allocation of costs following proceedings in the High Court, the Court of Appeal of New South Wales, and at trial.
The central legal issue before the High Court was the determination of who should bear the costs of the High Court proceedings, and how the costs of the lower courts should be handled. Specifically, the court was required to decide whether the general rule that costs follow the event should apply to the High Court appeal, and whether to remit the costs of the Court of Appeal and trial proceedings back to that court for determination.
The High Court ordered that the respondents pay the appellants' costs of the proceedings in the High Court. This decision suggests that the appellants were successful on appeal. Furthermore, the High Court determined that the costs of the proceedings in the Court of Appeal of the Supreme Court of New South Wales and the proceedings at trial should be determined by the Court of Appeal itself, indicating a delegation of discretion for those lower court costs.
Orders
Orders of the court
1. Respondents to pay appellants' costs of the proceedings in this Court.
2. The costs of proceedings in the Court of Appeal of the Supreme Court of New South Wales and of the proceedings at trial be in the discretion of the Court of Appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ