Haros v Linfox Australia Pty Ltd (No 2) - [2011] FCA 1223

FEDERAL COURT OF AUSTRALIA
Haros v Linfox Australia Pty Ltd (No 2) [2011] FCA 1223

Citation: Haros v Linfox Australia Pty Ltd (No 2) [2011] FCA 1223

Parties: GEORGE GABRIEL HAROS v LINFOX AUSTRALIA PTY LTD (ACN 004 718 647) and TIMOTHY ANDERSON

File number: VID 868 of 2009

Judge: TRACEY J

Date of judgment: 28 October 2011

Catchwords: COSTS – indemnity costs – offers of compromise made before trial – not accepted by applicant - judgment in favour of respondents - rebuttable presumption of making indemnity costs orders in favour of respondents – onus on applicant to show “compelling and exceptional circumstances” to justify not ordering indemnity costs - presumption not displaced

Legislation: Federal Court Rules 1979 (Cth) O 23, r 11
Federal Court Rules 2011 (Cth) R 1.04

Cases cited: Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 considered, applied
IFTC Broking Services Limited v Commissioner of Taxation (2010) 268 ALR 1 cited
Port Kembla Coal Terminal Limited v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 cited

Date of hearing: Heard on the papers

Date of last submissions: 22 September 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 43

Counsel for the Applicant: Mr S Wood & Mr J Snaden

Solicitor for the Applicant: Holding Redlich

Counsel for the Respondents: Mr J Bourke SC & Mr A Weinstock

Solicitor for the Respondents: Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 868 of 2009

BETWEEN:
GEORGE GABRIEL HAROS
Applicant

AND:
LINFOX AUSTRALIA PTY LTD (ACN 004 718 647)
First Respondent

TIMOTHY ANDERSON
Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

28 OCTOBER 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The applicant pay the respondents’ costs of the proceeding incurred up to 11:00 am on 17 December 2009 on a party and party basis and thereafter on an indemnity basis.
2.The applicant pay the respondents’ costs of the application for indemnity costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 868 of 2009

BETWEEN:
GEORGE GABRIEL HAROS
Applicant

AND:
LINFOX AUSTRALIA PTY LTD (ACN 004 718 647)
First Respondent

TIMOTHY ANDERSON
Second Respondent

JUDGE:

TRACEY J

DATE:

28 OCTOBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 22 June 2011 I ordered that an application, made by Mr George Haros, should be dismissed with costs: see Haros v Linfox Australia Pty Ltd [2011] FCA 699.
The respondents subsequently made application for orders that Mr Haros pay costs on an indemnity or party-party basis. They did so on the basis of three offers of compromise which they had made and which, in each case, had been rejected by Mr Haros. The offers had been made in 2009 and 2010.
The first offer of compromise was made under O 23 of the Federal Court Rules 1979 (Cth) (“the 1979 Rules”). It was made on 16…

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: [2011] FCA 1223
Decision Date: 28 October 2011

CaseChat Overview and Summary

The case of Haros v Linfox Australia Pty Ltd (No 2) was heard in the Federal Court of Australia, where the plaintiff, Haros, sought to challenge an order for indemnity costs against them. The nature of the dispute centred around the interpretation and application of the rules governing indemnity costs in litigation, particularly in relation to offers of compromise made before the trial.

The primary legal issue before the court was whether the rebuttable presumption of ordering indemnity costs in favour of respondents could be displaced in the absence of compelling and exceptional circumstances. This required the court to assess the circumstances under which offers of compromise had been made by the respondents and whether the applicant had provided sufficient justification to rebut the presumption.

The court found that the presumption of ordering indemnity costs in favour of respondents was not displaced in this case. Despite the plaintiff's arguments, they did not present compelling and exceptional circumstances that would justify the court deviating from the established legal principle. As such, the court upheld the presumption and ordered the plaintiff to pay the respondents' costs of the proceeding and the application for indemnity costs. The judgment underscores the importance of the procedural rules governing offers of compromise and the weight of the presumption in indemnity cost orders.

Orders

Orders of the court

1. The applicant pay the respondents’ costs of the proceeding incurred up to 11:00 am on 17 December 2009 on a party and party basis and thereafter on an indemnity basis.

2. The applicant pay the respondents’ costs of the application for indemnity costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Haros v Linfox Australia Pty Ltd (No 2) [2011] FCA 1223
Parties:		GEORGE GABRIEL HAROS v LINFOX AUSTRALIA PTY LTD (ACN 004 718 647) and TIMOTHY ANDERSON
File number:		VID 868 of 2009
Judge:		TRACEY J
Date of judgment:		28 October 2011
Catchwords:		COSTS – indemnity costs – offers of compromise made before trial – not accepted by applicant - judgment in favour of respondents - rebuttable presumption of making indemnity costs orders in favour of respondents – onus on applicant to show “compelling and exceptional circumstances” to justify not ordering indemnity costs - presumption not displaced
Legislation:		Federal Court Rules 1979 (Cth) O 23, r 11 Federal Court Rules 2011 (Cth) R 1.04
Cases cited:		Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 considered, applied IFTC Broking Services Limited v Commissioner of Taxation (2010) 268 ALR 1 cited Port Kembla Coal Terminal Limited v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 cited
Date of hearing:	Heard on the papers
Date of last submissions:	22 September 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	43
Counsel for the Applicant:	Mr S Wood & Mr J Snaden
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondents:	Mr J Bourke SC & Mr A Weinstock
Solicitor for the Respondents:	Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 868 of 2009

JUDGE:	TRACEY J
DATE OF ORDER:	28 OCTOBER 2011
WHERE MADE:	MELBOURNE

JUDGE:	TRACEY J
DATE:	28 OCTOBER 2011
PLACE:	MELBOURNE