DYNASTY PTY LTD. WAYNE LEIGHTON THOMAS. THOMAS CHARTERS PTY LTD and THOMAS HOTELS PTY LTD.
Appellants
- and -
-
K
Respondent
m:
Spender, O'Loughlin & Branson JJ
PLACE
: Brisbane
DATE:
26 September 1995
MINUTES OF ORDER
2 8 SEP 1995
AUSTRALIA
PRINCIPAL
REQISTRY
THE COURT ORDERS THAT:
the appeal be dismissed;
the appellants pay the respondent's costs of the appeal,
to be taxed if not agreed.
Note:
Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
COURT OF AUSTE&LA )
)
SOUTH A U S W I A DISTRICT REGISTRY
)
No. SG 74 of 1994
) )
ON APPEAL FROM A SINGLE JUDGE OF
THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
DYNASTY PTY LTD. WAYNE LEIGHTON
T
T
Appellants
- and -
KEVIN JOHN COOMBS
Respondent
C O W :
Spender, O'Loughlin, Branson JJ
PLACE': Brisbane
W:
26 September 1995
THE COURT: In this matter the respondent has sought an order of indemnity costs in respect of the unsuccessful appeal against the decision of the Honourable Justice von Doussa.
Section 43 of the Federal Court of Australia Act 1976 gives a general power to award costs and provides in subsection (2) that "[elxcept as provided by any other Act, the award of costs is in the discretion of the Court or Judge". The discretion has been said to be "absolute and unfettered" but it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation (Cretazzo v Lombardi
(1975) 13 SASR 4; Australian Transport Insurance Pty Ltd
-2-
& Anor v Graeme Phillips Road Transport Insurance Pty Ltd and
Anor (1985) 10 FCR 177). The discretion extends to the making of an order that costs be paid on a "solicitor and client" rather than a "party and party" basis (Australian Transport Insurance Pty Ltd & Anor v Graeme Phillips Road Transport Insurance Pty Ltd and Anor) and to the making of an order that costs be paid on an indemnity basis (Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568; Thors and Ors v Weekes and Ors (1989) 92 ALR 131 at 152).
Since the discretion of the Court is unfettered it is not appropriate to seek to derive rules for its exercise from previous decisions. It may be noted, however, that orders for costs to be paid on a "solicitor and client" or an indemnity basis are rarely made. When made they tend to reflect the peculiar nature of the litigation in question ( e . g . Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd) or serious criticism of the conduct of a party or its legal representatives (e.g. Packer v Meagher (1984) 3 NSWLR 486; Australian Guarantee Corporation Ltd & Anor v De Jager & Anor (1984) VR 483).
In this case the respondent places reliance on:-
(a)
the inappropriate and unhelpful form of the Notice of Appeal;
(b)
the fact that at directions hearing in relation to the appeal counsel for the respondent criticised, and OILoughlin J drew attention to, the inappropriate form of the Notice of Appeal yet its
deficiencies were not rectified;
(c)
the fact that the applicants' solicitors were placed on notice approximately three weeks before the hearing of the appeal that, if successful on the appeal, the respondent would seek indemnity costs on account of the form and content of the Notice of Appeal ;
(d)
the trouble and expense to which the respondent was put in meeting the numerous and detailed complaints raised by the Notice of Appeal;
(e)
an offer of settlement made by the respondent to the appellants prior to the commencement of the appeal.
We note as to the final matter upon which reliance is placed that it appears that the appellants' solicitors were unable to contact their clients to take instructions with respect to such offer within the short time that the offer was expressed to be open for acceptance. This was apparently a factor outside the control of the appellants or their legal advisers. We do not consider it appropriate to place weight on the offer to settle the appeal.
The hearing before the trial judge was lengthy and raised issues of some complexity. No criticism can be made of the decision of the appellants to institute an appeal to the Full Court: it was their right. It has not been suggested that they exercised this right for an improper purpose.
It is our belief that the appeal hearing would have been expedited had the Notice of Appeal been appropriately drawn. The extent to which it might have been so expedited is difficult to quantify. We do not doubt that the task of the
-4-
respondent's legal representatives in preparing to meet the appeal would have been less onerous had the Notice of Appeal been appropriately drawn. Again it is difficult to determine to what extent.
In our view a situation might arise in which an inappropriately drawn Notice of Appeal can be shown so plainly to have added significantly to the costs of the respondent that an order for costs should be made as a compensatory measure. An order of that kind was made in Ah Toy v Registrar of Companies (NT) (1986) 72 ALR 107 at 134-135 where inappropriately voluminous Appeal Books were prepared.
On balance, however, we do not consider this to be an appropriate case for the making of such an order. In our view in this case the usual order that the successful party should have its costs of the appeal on a party and party basis to be taxed if not agreed is the appropriate order.
We order accordingly.
I certify that this and the
preceding three (3) pages are a true copy of the Reasons for Decision of Spender, OJLoughlin and Branson JJ.
Associate: p d +
M:
26 September 1995
Details
AGLC
Dynasty Pty Ltd v Coombs [1995] FCA 766
Case
[1995] FCA 766
Decision Date
CaseChat Overview and Summary
In the case of Dynasty Pty Ltd v Coombs, the respondents, Dynasty Pty Ltd, Wayne Leighton Thomas, Thomas Charters Pty Ltd, and Thomas Hotels Pty Ltd, sought to appeal a decision made by a single judge of the Federal Court of Australia. The appeal was against Kevin John Coombs, who was the respondent in the original case. The Federal Court of Australia, comprising Justices Spender, O'Loughlin, and Branson, heard the appeal and ultimately dismissed it.
The primary legal issue the court had to decide was whether the appellants should be ordered to pay the respondent's costs of the appeal on an indemnity basis due to the inappropriate form and content of the Notice of Appeal. The court considered various factors, including the deficiencies in the Notice of Appeal, the trouble and expense incurred by the respondent in responding to the appeal, and an offer of settlement made by the respondent before the commencement of the appeal. The court noted that while the Notice of Appeal was inappropriate, it did not believe this case warranted an order for indemnity costs.
In their reasoning, the justices explained that while the discretion to award costs is absolute and unfettered, such discretion must be exercised judicially and based on the litigation. Although the appeal hearing could have been expedited if the Notice of Appeal had been appropriately drawn, the court did not believe this case warranted a compensatory measure. Instead, the court decided that the usual order for the successful party to have its costs of the appeal on a party and party basis, to be taxed if not agreed, was appropriate.
As a result of their decision, the court dismissed the appeal and ordered that the appellants pay the respondent's costs of the appeal, to be taxed if not agreed. The court emphasized that it did not find any improper purpose in the appellants' decision to institute the appeal, but the deficiencies in the Notice of Appeal added to the respondent's costs and trouble.