Dowdell v Knispel Fruit Juices Pty Ltd - [2003] FCA 1276

FEDERAL COURT OF AUSTRALIA
Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 1276
COSTS – multi respondents – costs against former parties
Federal Court of Australia Act 1976 (Cth) s 43
Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Cretazzo v Lombardi (1975) 13 SASR 4
Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127
Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216
Knight v F.P. Special Assets Ltd (1992) 174 CLR 178
Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
R Quick, Quick on Costs, Lawbook Co, Sydney, 2001, vol 2
JOANNE DOWDELL v KNISPEL FRUIT JUICES PTY LTD (trading as Nippys)
ACN 007 841 492 and Ors
S 20 OF 1999
SELWAY J
11 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 20 OF 1999

BETWEEN:

JOANNE DOWDELL
APPLICANT

AND:

KNISPEL FRUIT JUICES PTY LTD (trading as Nippys)
ACN 007 841 492
RESPONDENT / CROSS-CLAIMAINT

NIPPY’S WAIKERIE PRODUCERS PTY LTD
ACN 008 038 195
FIRST CROSS-RESPONDENT

PETER CONSTAS
SECOND CROSS-RESPONDENT

THEO CONSTAS
THIRD CROSS-RESPONDENT

JUDGE:

SELWAY J

DATE OF ORDER:

11 NOVEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS:
1.Save only for the costs the subject of order 2, Peter Constas and Theo Constas shall pay the costs of the respondent Knispel Fruit Juices Pty Ltd in the proceedings for which judgment was given in Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851. Such costs are inclusive of such future costs in relation to the cross-respondents (or any of them) as may reasonably be incurred by Knispel Fruit Juices Pty Ltd in relation to the assessment of damages pursuant to par 6 of the order made on 13 August 2003.
2.In relation to the issue of the extent of any damages suffered by the respondent:
(a)Peter Constas and Theo Constas shall pay to the respondent Knispel Fruit Juices Pty Ltd 50 per cent of the costs of the respondent; and
(b)American Home Assurance Company, AMP General Insurance Ltd and CGU Insurance Ltd shall pay to the respondent Knispel Fruit Juices Pty Ltd 50 per cent of the costs of the respondent.

3.Peter Constas and Theo Constas shall pay the costs of the first cross-respondent Nippy’s Waikerie Producers Pty Ltd in the proceedings for which judgment was given in Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851.
4.In each instance the costs ordered to be paid do not include any costs incurred by any party in relation to the claim by Knispel Fruit Juices Pty Ltd against the Citrus Marketing Board or the claims by Nippy’s Waikerie Producers Pty Ltd against American Home Assurance Company, AMP General Insurance Ltd and CGU Insurance Ltd.
5.Costs to be taxed in the absence of agreement.

6. The parties be at liberty to apply upon reasonable notice.
Note: Settlement and entry of orders is dealt with…

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

Case: [2003] FCA 1276
Decision Date: 11 NOVEMBER 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Joanne Dowdell sued Knispel Fruit Juices Pty Ltd, trading as Nippys, along with Nippy’s Waikerie Producers Pty Ltd, and the Constas brothers, Peter and Theo Constas, over losses and damages caused by fruit juice contaminated with salmonella bacteria. The central issue was the appropriate allocation of costs for the proceedings, which were subject to a previous judgment on 13 August 2003. The court had to determine whether Knispel Fruit Juices Pty Ltd should be awarded costs against the Constas brothers, Nippy’s Waikerie Producers Pty Ltd, and the insurers of both companies. The Constas brothers argued that costs should not be awarded to Knispel Fruit Juices Pty Ltd for unsuccessful claims in negligence and breach of statutory duty, that the evidence of damages was unhelpful, and that the court should not have relied on certain witnesses. The court assessed these arguments and concluded that Knispel Fruit Juices Pty Ltd was entitled to its costs. The court found that the main contest was between Knispel Fruit Juices Pty Ltd and the Constas brothers, and that Nippy’s Waikerie Producers Pty Ltd, despite being a cross-respondent, was effectively aligned with Knispel Fruit Juices Pty Ltd. Consequently, the court ruled that the Constas brothers should bear the majority of Knispel Fruit Juices Pty Ltd's costs, except for those related to the damages issue, which should be split between the Constas brothers and the insurers. The court also noted that the insurers, despite settling with Knispel Fruit Juices Pty Ltd and Nippy’s Waikerie Producers Pty Ltd, had actively disputed damages and should share the responsibility for those costs. The court's final orders were that Peter Constas and Theo Constas should pay certain costs to Knispel Fruit Juices Pty Ltd and Nippy’s Waikerie Producers Pty Ltd, while the insurers should contribute to a portion of Knispel Fruit Juices Pty Ltd's costs related to damages.

Orders