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 Act1976 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
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…
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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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.