Coal Hub Pty Ltd v NSL Consolidated Ltd [No 5]

Coal Hub Pty Ltd, the appellant, brought an action against NSL Consolidated Ltd, the respondent, seeking damages for alleged breaches of contract. The Federal Court of Australia was tasked with determining the appropriate amount of costs to be awarded. The primary issue for the court was whether the conduct of counsel for the appellant had unreasonably increased the costs of the trial, thereby warranting a special costs order against the appellant. The court had to balance the principle that a party is generally entitled to recover costs from the other party against the need to ensure that the conduct of counsel did not unduly burden the legal process.

The court examined the conduct of the appellant's counsel, focusing on whether it was reasonable in the circumstances. It considered factors such as the complexity of the case, the conduct of the respondent's counsel, and the overall conduct of the trial. The court found that while the appellant's counsel had made some errors, these were not significant enough to warrant a special costs order. It determined that the conduct of counsel did not unreasonably increase the costs of the trial, and thus the appellant was entitled to recover its costs from the respondent. The court emphasised the importance of proportionality in making such orders and noted that the respondent's conduct had not been exemplary.

In light of its findings, the court dismissed the respondent's application for a special costs order. It held that the appellant was entitled to recover its costs of the trial, subject to certain adjustments for unreasonable conduct. The court made clear that while it had some criticisms of the appellant's counsel, these did not reach the threshold required for a special costs order. The final orders of the court reflected this decision, with the respondent ordered to pay the appellant's costs of the trial, subject to the adjustments made by the court.