FEDERAL COURT OF AUSTRALIA
Impiombato v BHP Group Limited (No 2) [2025] FCAFC 28
Appeal from: Impiombato v BHP Group Limited (No 5) [2024] FCA 591 File number(s): VID 553 of 2024 Judgment of: BEACH, LEE AND O'BRYAN JJ Date of judgment: 14 March 2025 Catchwords: COSTS – where appellant sought costs order in its favour and respondents sought apportionment of costs on an issue by issue basis – court’s discretion to award costs – relevant principles – order made for respondents to pay 50% of the appellant’s costs Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Australian Trade Commission v Disktravel [2000] FCA 62
Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Impiombato v BHP Group Limited (No 4) [2023] FCA 1354
Impiombato v BHP Group Limited (No 5) [2024] FCA 591
Impiombato v BHP Group Limited [2025] FCAFC 9
Northern Territory v Sangare (2019) 265 CLR 164
Oshlack v Richmond River Council (1998) 193 CLR 72
Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 24 Date of last submission/s: 26 February 2025 Date of hearing: Determined on the papers Counsel for the appellant: W Harris KC with K Loxley, B Cameron and J Moir Solicitors for the appellant: Herbert Smith Freehills Counsel for the respondents: E L Olivier Solicitors for the respondents: Phi Finney McDonald and Maurice Blackburn Lawyers ORDERS
VID 553 of 2024 BETWEEN: BHP GROUP LIMITED
Appellant
AND: VINCE IMPIOMBATO
First Respondent
KLEMWEB NOMINEES PTY LTD (AS TRUSTEE FOR THE KLEMWEB SUPERANNUATION FUND)
Second Respondent
ORDER MADE BY:
BEACH, LEE AND O'BRYAN JJ
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.Order 1 of the orders of the Court made on 10 July 2024 in VID 649 of 2018 be set aside and replaced by the following order:
The Applicants pay the Respondent’s costs thrown away by reason of the amendments made pursuant to Order 1 of the orders of the Court made on 6 June 2024.
2.Order 1 of the orders of the Court made on 19 July 2024 in VID 649 of 2018 be set aside and replaced by the following order:
The Applicants pay 50% of the Respondent’s costs of the Applicants’ interlocutory application dated 5 December 2023, as agreed or taxed.
3.The Respondents pay 50% of the Appellant’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH AND O’BRYAN JJ:
Introduction
On 12 February 2025, the…
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- Case
- [2025] FCAFC 28
- Decision Date
CaseChat Overview and Summary
The court considered the principles relevant to the award of costs in mixed outcome cases, noting that the applicants had argued for separate costs orders for each issue, with the unsuccessful party on each issue paying the other party's costs. Alternatively, the applicants submitted that each party should bear its own costs, considering the mixed success of both parties and the time dedicated to both issues. The court found that while there were two categories of amendments in the amendment application, the arguments before the court did not distinctly separate these categories. Instead, the court held that the two categories of amendments were argued together, and therefore, the mixed outcome of the appeal justified a single order for costs.
In making its decision, the court took into account several factors, including the fact that the applicants were responsible for initiating the amendment process, BHP did not oppose the amendments themselves but only the application to relate the amendments back to the commencement of the proceeding, and BHP was successful on the more significant questions, including the principles to be applied to the group definition amendments and the factual questions of mistake and prejudice. The court concluded that while BHP was predominantly successful, the percentage of costs should be reduced to reflect BHP's failure in its opposition to the additional claims amendments taking effect from the commencement of the proceeding.
The court ordered that the applicants pay 50% of BHP's costs of the application before the primary judge and on the appeal. This order was made to reflect BHP's predominant success, while also reducing the percentage of costs to account for the applicants' success on the additional claims amendments. The court set aside previous orders and replaced them with new orders specifying the costs to be paid by the applicants and respondents, respectively.
Orders
Orders of the court
1. Order 1 of the orders of the Court made on 10 July 2024 in VID 649 of 2018 be set aside and replaced by the following order:
The Applicants pay the Respondent’s costs thrown away by reason of the amendments made pursuant to Order 1 of the orders of the Court made on 6 June 2024.
2. Order 1 of the orders of the Court made on 19 July 2024 in VID 649 of 2018 be set aside and replaced by the following order:
The Applicants pay 50% of the Respondent’s costs of the Applicants’ interlocutory application dated 5 December 2023, as agreed or taxed.
3. The Respondents pay 50% of the Appellant’s costs of the appeal, as agreed or taxed.
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
In light of the mixed outcome of the appeal, the applicants submitted that it is appropriate that the separate issues be the subject of separate costs orders, with the unsuccessful party on each issue paying the other party’s costs in respect of that issue. In the alternative, the applicant submitted that the appropriate order is that the parties bear their own costs, having regard to: the parties’ mixed success on the two primary issues; the time that was dedicated to both issues during the course of the hearing; and the fact that BHP was unsuccessful on several discrete grounds of its appeal. Consideration As explained in the Appeal Reasons, the amendment application involved two categories of amendments: the first category consisted of amendments to the group definition and the second category consisted of amendments to the scope of the claims made. Despite that, the parties’ arguments before the primary judge and on the appeal focused principally on the first category of amendments, being the group definition amendments. Prior to the hearing of the appeal, neither of the parties submitted that separate legal principles govern the group definition amendments and the additional claims amendments and that the Court should consider whether the two categories of amendment ought to take effect from different dates. That outcome, which the Full Court ultimately considered appropriate, was raised by the Full Court in the course of argument on the appeal. It follows that we do not fully accept the applicants’ contention that there were two distinct issues in contest between the parties and that BHP was successful in its arguments concerning the group definition amendments, while the applicants were successful in their arguments concerning the additional claims amendments. That does not reflect how the amendment application was argued before either the primary judge or on appeal. The award of costs ought to take account of the following factors. First, the parties were required to come to Court because the applicants wished to amend their originating application and statement of claim. In that sense, the applicants were responsible for BHP having to consider and respond to the amendment application. Second, BHP did not oppose the amendments and only opposed the application to relate the amendments back to the commencement of the proceeding. Third, BHP was successful in its opposition to the group definition amendments having effect from the commencement of the proceeding, although it was ultimately unsuccessful in its opposition in respect of the additional claims amendments. Fourth, while both parties had a degree of success and failure on the questions of fact and law that were agitated on the amendment application, overall BHP was successful on the more significant questions, including the relevant principles to be applied in respect of the group definition amendments and the factual questions of mistake and prejudice. Taking all of those considerations into account, we consider that the appropriate order is that the applicants pay 50% of BHP’s costs of the application before the primary judge and on the appeal. That order appropriately reflects the fact that BHP was predominantly successful, justifying an award of costs in its favour, but that the percentage of costs should be reduced to reflect the fact that BHP was not successful in its opposition to the additional claims amendments taking effect from the commencement of the proceeding.