Comalco Aluminium Ltd v Garraway Metals P/L
[1994] FCA 204
•20 Apr 1994
JUDGMENT No. ........ ........ .. ........ .... a 0 . t 1 9 ' f
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 463 of 1992 GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDB
OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N :
COMALCO ALUMINIUM LTD
Appellant
(Respondent)
A N D :
GARRAWAY METALS PTY LTD
Respondent
(Applicant)
m: NORTHROP, FRENCH, O'LOUGHLIN JJ W: MELBOURNE
DATE :
- 20 APRIL 1994
MINUTES OF ORDER
THE COURT ORDERS AND DECLARES THAT:
1. The appellant pay half of the respondent's costs of the trial, including reserved costs.
2. The respondent pay half of the appellant's costs of the appeal, including reserved costs.
Order 36 of the Federal Court Rules
3. The amount of the costs referred to in orders 1 and 2 hereof are to be set off and the credit balance to be paid to the party entitled thereto.
4. The appellant was on and from 8 December 1993 entitled to the sum of $538,070.00 contained in the bank account referred to in order 4 of the orders made on 6 November 1992 and was and is entitled to the interest on that amount from 8 December 1993 until the principal and interest is paid to it.
Note : Settlement and entry of orders is dealt with in
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 463 of 1992 GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N :
COMALCO ALUMINIUM LTD
Appellant
(Respondent)
A N D :
GARRAWAY METALS PTY LTD
Respondent
(Applicant)
COURT : NORTHROP, FRENCH, O'LOUGHLIN JJ PLACE : MELBOURNE DATE: 20 APRIL 1994
REASONS FOR DECISION
THE COURT
On 8 December 1993, the Court made the following orders in this appeal:
"1. The appeal be allowed in part. 2. Orders 1 and 3 of the orders made on 6 November 1992 be set aside.
3. Order 2 of the orders made on 6 November 1992 be confirmed.
4. Costs of the application and of the appeal be reserved."
At the same time the Court published its reasons for judgment.
The orders appealed from, which were made on 6 November
1992 by the Court constituted by Heerey J and entered on 24November 1992, were as follows:
"1. Judgment be entered on the claim described in paragraph 5(a) of the Applicant's Further and Better Particulars of Loss dated 25 September 1992 in the sum of $538,070.00.
2. Judgment be entered on the claim described in paragraph 5(b) of the Applicant's Further and Better Particulars of Loss dated 25 September 1992 in the sum of $210,000.00
3. The Respondent pay the Applicant's costs including reserved costs.
4. Upon the Applicant by its counsel undertaking that the amount of the judgment or judgments will be held in an interest bearing bank account in the name of the Applicant's solicitor pending the determination of any appeal, with the Applicant to be entitled to the interest on such amount, and upon the Respondent, by its counsel undertaking that the appeal will be prosecuted expeditiously, the Respondent's application for a stay is dismissed."
The orders made on 6 November 1992 appear to be final
orders. Comalco Aluminium Ltd ("Comalco"), the respondent tothe application heard by Heerey J, appealed against those
whole of the judgment made on 6 November. The Court heard orders. By its notice of appeal, Comalco appealed from the this appeal and made the orders set out at the beginning of
these reasons.The parties conducted the appeal as if the orders made on 6 November were final orders. Comalco did not treat the orders as interlocutory orders. It did not obtain leave to appeal from those orders, see subsection 24(1) of the Federal Court of Australia Act 1976 and 052 r10 of the Fedexal Court Rules. Towards the end of the hearing of the appeal, reference was made to further orders having been made by the Court constituted by Heerey J in the proceeding Garraway Metals Pty Ltd ("Garraway") v Comalco but the Court was informed by counsel that it need not be concerned by those orders. It appears that on 10 May 1993, the Court constituted by Heerey J made further orders which related to what are described as the consequential loss relating to the contract claim. The "contract claim" refers to the subject matter of order 1 of the orders made on 6 November 1992. Apparently, there has been no appeal from the orders made on 10 May 1993. Certainly, those orders were not the subject of the appeal before this Court. The Full Court did not consider them. The orders made on 10 May 1993 remain in operation until varied or set aside according to law. Those orders are not before this Court. This Court does not propose to consider any matters arising from those orders.
The orders made by this Court are explicit and operate of their own force. The question of the costs of the application and of the appeal were reserved for the reasons expressed at pages 25 to 26 of the reasons for judgment. The parties were unable to agree on an order for costs. By letter dated 21 February 1994 the parties were directed to make submissions on the question of costs. They have done this.
At the hearing, no submissions were made with respect to order 4 of the orders made on 6 November 1992. Although Comalco, by its notice of appeal, appealed from all the orders made on 6 November 1992, it was not appropriate to challenge order 4. Of necessity, it should not have been made the subject of the appeal. It arose out of a contemplated appeal by Comalco. Attention is drawn to 052 r17 of the Federal Court Rules. Comalco certainly did not seek to have order 4 set aside or varied. The order was procedural and made under 052 r17. The desirability of the making of the order is illustrated by what has happened in this case.
In its reasons for judgment, this Court said:
"Finally, reference is made to order 4 of the orders of the Court made on 6 November 1992. The parties should be able to agree on what orders should be made in relation to that order. If no agreement is reached, written submissions can be made."
Further submissions have been received from the parties
on this issue.
The submissions before the Court go far beyond the question of costs and order 4 of the orders of 6 November 1992. They contain many allegations involving disputed facts. This Court will limit its consideration to the two relevant matters only and expresses no views on the other matters. Costs
Comalco seeks an order that Garraway pay to it 90% of its costs of the trial and of the appeal including all reserved costs. Garraway seeks an order that Comalco pay to it its costs of the trial, including reserved costs, and that there be no order for costs of the appeal.
The reasons for judgment of the Court made it clear that the two discrete issues before it related to the subject matter of order 1 made on 6 November 1992 (the "contract claim") and the subject matter of order 2 (the "trade practices claim"). In each case, the amount at issue was not in dispute. It appeared to the Court that the contract claim "formed the basis for the major part of the hearing and of the appeal". This does not appear to be disputed but Garraway claims that the contract claim formed an important part of the trade practices claim.
Section 43 of the Federal Court of Australia Act
provides :
Judge has jurisdiction to award costs in all proceedings "43 (1) Subject to subsection (lA), the Court or a before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (1A) [not relevant for these purposes] (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge."
The discretion conferred upon the Court is unfettered. The general principle is that a successful party is entitled to an order that the costs be paid by the unsuccessful party. This is illustrated by order 3 of the orders made on 6 November 1992. Where a party succeeds on some of its claims but fail; on others, in theory orders for costs might be made that the parties are entitled to their costs of the claims on which they succeeded and that the costs so awarded be set off against each other and the balance paid to the party so entitled. This is a cumbersome process and is often overcome by the Court assessing a proportion of the costs of a party be paid by the other on the basis of an estimate of what is fair as between the parties. In doing this, the Court has regard to a number of matters including the length of time spent on each claim, the conduct of the parties at the hearing and other factors relevant to any particular case.
In the present case, Garraway succeeded on the trade practices claim but failed on the contract claim. On the appeal, Comalco succeeded on the contract claim but on a point of law not argued before the trial judge. Prima facie,
Comalco should pay one half of Garraway's costs of the trial, therefore, having regard to the peculiar facts of this case, including reserved costs. On the same basis, prima facie, Garraway should pay one half of Comalco's cost of the appeal, including reserved costs. The amounts of these costs should be set off and the balance paid accordingly.
In its submissions Garraway referred to a number of authorities relating to costs. These are helpfully referred to by Cooper J in Cumminas v Lewis (1993) 113 ALR 285 at 327, although that case involved a slightly different issue. The prima facie view of the Court is not inconsistent with any of those authorities. Accordingly the order for costs will be as indicated.
In its submissions, Garraway seeks a certificate pursuant to s6 of the Federal Proceedinqs (Costs) Act 1981. If it desires to pursue this application, it should do so on proper material before a Judge in Chambers, see sl2 of that Act.
Order 4 of the Orders made on 6 November 1992 As was said earlier in these reasons, this order is procedural in nature. The intention behind the order is clear. Apparently, the position has been made complex by matters not before the Court on the hearing of the appeal. Some of the orders made on 10 May 1993 involved other moneys being paid into the bank account referred to in order 4. Apparently another person is claiming an entitlement to the
moneys in that account. None of these issues can be determined by this Court. The meaning and application of order 4 is clear. Instead of granting a stay of orders 1 and 2 of the orders made on 6 November 1992 pending the hearing and determination of the proposed appeal, Comalco undertook to pay the sum of the amounts mentioned in orders 1 and 2 into an interest bearing bank account in the name of Garraway's solicitor "pending the determination of" the appeal. Comalco did this. It paid the sum of $538,070.00 and $210,000.00, namely $748,070.00, into the bank account. Garraway was entitled to the interest on that sum "pending the determination" of the appeal. As a result of the orders made by the Full Court, it is clear that Garraway is not entitled to the benefit of the sum mentioned in order 1, namely $538,070.00, after 8 December 1993. It follows that on and from 8 December 1993 Comalco is entitled to that amount together with interest thereon from and including 8 December 1993. If that amount is not paid by
Garraway's solicitor, Comalco will need to take such action against those solicitors as it thinks necessary.
It should be noted that Comalco paid the money into the bank account pursuant to an undertaking given to the Court. The Court should be jealous to ensure that Comalco is not adversely affected by that action since, on the basis of that undertaking being given, the Court refused Comalco's application for a stay of the orders 1 and 2 made on 6
November 1992. In all the circumstances, the Court will declare that as on and from 8 December 1993, Comalco was and is entitled to the sum of $538,070.00 contained in the bank account referred to in order 4 of the orders made on 6 November 1992 and was and is entitled to the interest on that amount from that date until the principal and interest is paid to it.
In the circumstances the Court should not make any order against the solicitors for Garraway.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of the Court. Associate: I f e @ E I < ~
Date: il 1 9 9 ~
JUDGES' CHAMBERS
FEDERAL COURT OF AUSRALIA
2 AUSTRALIA 450 LITTLE BOURKE STREET *~>t)5&,<<<<4~ MELBOURNE, 3000
21 April 1994
MS Sonia Cornale
Records Clerk
Library and Information Services
Principal Registry
Federal Court of Australia
Level 16
Law Courts Building
Queens SquareSYDNEY NSW 2000
Dear Sonia
Re: Computerized Leaal Information Retrieval Svstem
I enclose the following judgments for inclusion in the data base of Federal Court Judgments:
1. Comalco Aluminium Ltd v Garrawav Metals Ptv Ltd No VG 463 of 1992
2. Australian Securities Commission v Melbourne Asset Manaaement Nominees Ptv Ltd (Receiver and Manaaer Avvointed) and MAM Mortaaaes Ltd (Receiver and Manaaer Appointed 1
Nos VG 3103 and 3104 of 1993 No VG 3377 of 1993 Wallace-Smith and Others v Andrews and Others
The word processing disks containing the above judgments are enclosed. Please return the disks to me when appropriate.
Thank you
Hon kr Justice Northrop
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