FEDERAL COURT OF AUSTRALIA
Carey v Freehills [2014] FCA 132
Citation: Carey v Freehills [2014] FCA 132 Parties: NORMAN PHILLIP CAREY & ORS (ACCORDING TO THE ATTACHED SCHEDULE); FREEHILLS and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION File number: VID 485 of 2008 Judge: KENNY J Date of judgment: 25 February 2014 Catchwords: COSTS – application for order that costs be awarded in a lump sum pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth) – factors relevant to exercise of discretion discussed – application dismissed. Legislation: Federal Court Rules 2011 (Cth) Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Su v Australian Fisheries Management Authority (No 3) [2008] FCA 2018
Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916
Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd (No 7) [2011] FCA 1359
Bitek Pty Ltd v IConnect Pty Ltd (2012) 290 ALR 288 Hadid v Lenfest Communications Inc [2000] FCA 628 Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788
Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930
Seven Network Limited v News Limited [2007] FCA 2059 ACN 074 971 109 (as trustee for the Argo Unit Trust) v National Mutual Life Association of Australasia Ltd [2013] VSC 137
Salfinger v Niugini Mining (Aust) Pty Ltd (No 5) [2008] FCA 1119
Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26
Harrison v Schipp (2002) 54 NSWLR 738
WM Wrigley JR Company v Cadbury Schweppes Proprietary Limited [2006] FCA 1186Date of hearing: Determined on the papers Date of last submissions: 10 February 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Cross-Claimant: M L Coulson Solicitor for the Cross-Claimant: Metaxas & Hager Counsel for the Cross-Respondents: D A Klempfner Solicitor for the Cross-Respondents: Colin Biggers & Paisley
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 485 of 2008
BETWEEN: NORMAN PHILLIP CAREY & ORS
(ACCORDING TO THE ATTACHED SCHEDULE)
Cross-ClaimantsAND: FREEHILLS
First Cross-RespondentAUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Cross-Respondent
JUDGE:
KENNY J
DATE OF ORDER:
25 FEBRUARY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for an order that costs be awarded in a lump sum be dismissed.
2.The first respondent pay the cross-claimants’ costs of this application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 485 of 2008
BETWEEN: NORMAN PHILLIP CAREY & ORS
(ACCORDING TO THE ATTACHED SCHEDULE)
Cross-ClaimantsAND: FREEHILLS
First Cross-RespondentAUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Cross-Respondent
JUDGE:
KENNY J
DATE:
25 FEBRUARY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
NATURE OF THE APPLICATION
On 26 November 2013, the Court ordered that the cross-claimants pay the first cross-respondent’s costs of and incidental to the cross-claim on a party and party basis. The first cross-respondent now applies for an order that these costs…
Keep reading for free
Create a free CaseChat account to read Carey v Freehills and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] FCA 132
- Decision Date
CaseChat Overview and Summary
The court considered the relevant principles and authorities, noting that an award of lump sum costs can be appropriate in various types of cases, not limited to large and complex commercial matters. The decision to award lump sum costs is discretionary and can be exercised based on factors such as the undue delay, expense, and inconvenience of taxing costs in the normal manner, and the financial capacity of the party liable to pay costs. The court assessed these factors in light of the specific circumstances of the case, including the potential for saving time, trouble, delay, expense, and aggravation.
After considering the arguments and the relevant factors, the court concluded that it was not appropriate to award lump sum costs in this case. The application was dismissed, and the first respondent was ordered to pay the cross-claimants' costs of the application.
Orders
Orders of the court
1. The application for an order that costs be awarded in a lump sum be dismissed.
2. The first respondent pay the cross-claimants’ costs of this application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The cross-claimants relied on the affidavit of Arthur Metaxas sworn on 28 January 2014 and the affidavit of Norman Phillip Carey sworn on 28 January 2014 to oppose the first respondent’s application.CONSIDERATIONThe relevant principles Rule 40.02(b) of the Rules provides that a party who is entitled to costs may apply to the Court for an order that costs “be awarded in a lump sum, instead of, or in addition to, any taxed costs”. The parties are in dispute over whether it is appropriate to award lump sum costs in this case. There is little dispute about the relevant principles. The authorities indicate that an award of lump sum costs can be appropriate in various kinds of cases: there is not just one type of case in which lump sum costs are proper. Thus, whilst an award of costs in a lump (or gross) sum may be appropriate in a large and complex commercial matter “to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation” as in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 (“Beach Petroleum”) at 120 (von Doussa J), a lump sum costs order may also be appropriate in non-complex cases, providing the circumstances warrant the exercise of the power: see, for example, Su v Australian Fisheries Management Authority (No 3) [2008] FCA 2018 at [1] (Reeves J); Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 at [23] (Mansfield J); Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd (No 7) [2011] FCA 1359 at [47] (Lander J); and Bitek Pty Ltd v IConnect Pty Ltd (2012) 290 ALR 288 at 291 [14] (“Bitek”) (Kenny J). The factors considered relevant to the exercise of discretion include: ·where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: see, for example, BeachPetroleum at 120; and·where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628; Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 (“Sony Entertainment”); and Bitek.Other factors will also be relevant, depending on the particular case. One factor may influence the assessment of another. Thus, in Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [4], Rares J said that a gross costs (or lump sum) order would be appropriate in a simple matter where it will save the parties “the time, trouble, delay, expense and aggravation in having a taxation proceed on a matter” (emphasis added). This was the case in Bitek: a lump sum award was made in what was a relatively simple case where “the respondents have wasted the applicant’s resources and time by their ongoing refusal to respond to the applicant’s communications, the institution of this proceeding, and court orders” and “in order to avoid a further waste of time and money that the applicant may not be able to recoup readily”: see Bitek at 292 [17]. The parties’ positions