Re: JAMES BARTHOLOMEW CUMMINGS
And: MICHAEL TERENCE LEWIS; DESMOND RUNDLE; JOHN BRADSHAW as representing all
members of the firm practising as KPMG Peat Marwick Hungerfords between 1
February 1989 and 28 March 1989; NOEL SIDNEY LECKIE and PAUL ISHERWOOD as
representing all members of the firm practising as Coopers and Lybrand between
1 May 1988 and 30 June 1989
No. G668 of 1989
FED No. 334
Costs
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Costs - Application by successful respondents for order for costs - Principles applicable to exercise of discretion on costs - Relevance of pre-trial conduct of successful party - Weight to be given to this factor - Relevance of parties' conduct of case - Effect of successful parties' failure on an issue of fact occupying significant trial time - Distinction between position of two sets of successful respondents - Order for payment of proportions of respondents' costs, differing as between respondents.
Federal Court of Australia Act 1976, s.43.
HEARING
SYDNEY
#DATE 29:5:1992
Counsel for the Applicant: D P F Officer, QC and V R W Gray
Solicitors for the Applicant: Malcolm Johns and Co
Counsel for the First, Second
and Third Respondents: D E J Ryan
Solicitors for the First, Second
and Third Respondents: Freehill Hollingdale and Page
Counsel for the Fourth and
Fifth Respondents: P M Jacobson
Solicitors for the Fourth
and Fifth Respondent: Norton Smith and Co
ORDER
THE COURT ORDERS THAT:
1. The applicant pay to the first, second and third respondents three quarters of their costs, as taxed or agreed, of the principal proceeding, including this motion for costs.
2. The applicant pay to the fourth and fifth respondents one half of their costs, as taxed or agreed, of the principal proceeding, including this motion for costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
I gave judgment in this matter on 2 August 1991, dismissing the Application. However, I did not then deal with costs. I explained my reason in these words:
"The Court has a discretion in regard to costs: see s.43 of the Federal Court of Australia Act 1976. It is usual to exercise that discretion in favour of the successful party. But this is not an absolute rule. The leading authority on the matter is Donald Campbell and Company Limited v Pollak (1927) AC 732. In that case, at pp 811-812, Viscount Cave L.C. set out some principles in relation to the costs discretion which continue to apply: 'A successful defendant in a non-jury case has, no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion,…
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- AGLC
- Cummings, J.B. v Lewis, M.T. & ors [1992] FCA 334
- Case
- [1992] FCA 334
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the exercise of discretion in awarding costs between the parties. The court had to determine the principles to apply in making such a decision, including the relevance of the pre-trial conduct of the successful parties, the conduct of the parties throughout the case, and the effect of the successful parties' failure on an issue of fact that had occupied significant trial time. Another issue was the distinction between the positions of the different sets of successful respondents and the appropriate proportions of their costs to be paid by the applicant.
The court found that the pre-trial conduct of the successful parties was relevant in determining the appropriate costs order. The court considered the conduct of the parties throughout the case, including the successful parties' failure on an issue of fact that had occupied significant trial time. The court distinguished between the positions of the different sets of successful respondents, resulting in different proportions of their costs to be paid by the applicant. The court ordered the applicant to pay three-quarters of the costs of the first, second, and third respondents and one-half of the costs of the fourth and fifth respondents.
The court further noted that the orders for costs were to be taxed or agreed and that settlement and entry of orders were dealt with in Order 36 of the Federal Court Rules. The court's decision provided clarity on the principles to apply in exercising discretion on costs and the weight to be given to the pre-trial conduct of successful parties.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The applicant pay to the first, second and third respondents three quarters of their costs, as taxed or agreed, of the principal proceeding, including this motion for costs.
2. The applicant pay to the fourth and fifth respondents one half of their costs, as taxed or agreed, of the principal proceeding, including this motion for costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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