Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd t/as Uncle Ben's of Australia

[1997] FCA 613

FEDERAL COURT OF AUSTRALIA

COSTS - appeal - whether appeal succeeded on a question of law or fact - issue of a costs certificate under the Federal Proceedings (Costs) Act 1981

Federal Proceedings (Costs) Act 1981 - ss 6, 8

Jenkins v Gleeson (1983) 46 ALR 207, considered
Phipson Nominees Pty Ltd v French (1989) 91 ALR 509, considered

LAKE CUMBELINE PTY LIMITED & ORS v EFFEM FOODS PTY LIMITED trading as UNCLE BEN’S OF AUSTRALIA

NG 522 of 1995

BEAUMONT, EINFELD AND FOSTER JJ
SYDNEY

11 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 522 of 1995
)
GENERAL DIVISION	)

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:             

LAKE CUMBELINE PTY LIMITED
First Appellant

IDOBOOK PTY LIMITED
Second Appellant

PETER HORROBIN
Third Appellant

RICHARD SANDS
Fourth Appellant

RAYMOND PRIDMORE
Fifth Appellant

   AND:  

EFFEM FOODS PTY LIMITED trading as UNCLE BEN'S OF AUSTRALIA
Respondent

JUDGES:	BEAUMONT, EINFELD AND FOSTER JJ
PLACE:	SYDNEY
DATED:	11 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. As to the costs of the appeal, we make no order.

1. As to the costs of the trial, order that the orders made by the trial judge be set aside (save as to the costs reserved on 14 November 1994 in respect of the question of privilege); and order in lieu thereof, that the costs at first instance abide the order of the new trial judge.

1. Refuse the respondent’s application for a certificate under the Federal Proceedings (Costs) Act 1981.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 522 of 1995
)
GENERAL DIVISION	)

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:             

LAKE CUMBELINE PTY LIMITED
First Applicant

IDOBOOK PTY LIMITED
Second Applicant

PETER HORROBIN
Third Applicant

RICHARD SANDS
Fourth Applicant

RAYMOND PRIDMORE
Fifth Applicant

  AND:  

EFFEM FOODS PTY LIMITED trading as UNCLE BEN'S OF AUSTRALIA
Respondent

JUDGES:	BEAUMONT, EINFELD AND FOSTER JJ
PLACE:	SYDNEY
DATE:	11 JULY 1997

REASONS FOR JUDGMENT (ON COSTS)

THE COURT:

INTRODUCTION

In the Court’s orders made on 24 April 1997, costs of the proceedings at first instance, and on the appeal, were reserved.  The parties were directed to file written submissions on this question.  They have now done so.

At first instance, the learned primary Judge ordered that the appellants pay the respondent’s costs of the principal proceedings, except in one respect to be mentioned later.

On behalf of the appellants it is now submitted that the respondent should pay the appellants’ costs on the appeal, but that the costs of the earlier trial should abide the order of the new trial Judge.

(Further, The appellants seek an order that “the respondent should also be required to pay all previous costs orders in the ‘associated proceedings’ before Gummow J, the Full Federal Court and the High Court of Australia”.  However, this question is not presently before us.  We say nothing about it.)

On behalf of the respondent, it is submitted in respect of the costs of the appeal that:

1. it should have, on an indemnity basis, the costs of the argument on:
            (a)         the representations (i), (vi) to (xi) and (xv) to (xxiv); and

(b)the attempt to reverse the trial Judge’s factual findings which were based on issues going to credit;

1. it should pay, on a party-party basis, the appellants’ costs of the argument on representations (ii), (iii) and (iv); and

1. otherwise the appellants should pay, on a party-party basis, the respondent’s costs of the appeal.

With respect to the costs of the trial, the respondent submits that it should have those costs, save that the costs relating to the issues on which the appellants succeeded on the appeal should be reserved; that in the event that the appellants succeed on the new trial, they should have those costs; and that in the event that they then fail, they should pay the respondent’s costs of the first trial.

The respondent also submits that having lost on a point of law, it should have certificates under ss. 6 and 8 of the Federal Proceedings (Costs) Act 1981.

CONCLUSIONS

We will deal first with the costs of the appeal.

1. The Costs of the Appeal

Given the circumstances that each side has, more or less, had an equal measure of success and failure on the appeal, we think that fairness requires that there be no order for these costs.  We have thought it appropriate that a “by and large” approach be adopted in this area, as any more precise approach to an apportionment of costs would not only be difficult to undertake, but could also produce a result that did not reflect the realities of the situation.  The realities of the appeal are that, in some substantial respects, both the appellants and the respondent have succeeded; but, equally, in other substantial respects, both sides have failed.  We do not think that it is realistic or practicable to attempt to quantify the relative measure of these successes or failures beyond the general approach we have decided to adopt, notwithstanding the parties’ invitation to be more particular in our order.  The appeal was allowed, but only in part, yet that part was of significance.  On the whole, then, neither side should be ordered to pay any costs.

1. The Costs At First Instance

The learned primary Judge ordered that the proceedings be dismissed “with costs, except that the costs of the interlocutory hearing on legal professional privilege reserved on 14 November 1994, should be paid by [the respondent]”.

It is not suggested that we disturb the order made on the claim for privilege.

As to the costs of the trial, we accept the force of the appellants’ present submission, which accords with the observations at p.115 of our reasons, that the facts out of which the case arose were “intertwined” and thus difficult to disentangle.  Again it is impractical to attempt, at this stage at least, an apportionment of the costs of the trial.  However, this position should be clarified after the new trial has taken place.  In those circumstances, we think that fairness requires that the costs of the first trial should abide the order of the new trial judge.

1. The Respondent’s Application For a Certificate Under ss. 6 and 8 of The Federal Proceedings (Costs) Act 1981

By s 6(1) of the Federal Proceedings (Costs) Act 1981 (“the Act”) it is provided that, subject to the Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of the respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

By s 8(1) of the Act it is provided that, subject to the Act, where a Federal appeal succeeds on a question of law, and the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party, grant the party a costs certificate in respect of the new trial.

In considering whether s 6(1) or s 8(1) might apply, the first matter to be addressed, in order to determine whether the Court has jurisdiction in this application, is whether it can be said that the present appeal “succeed[ed] on a question of law”.

In Jenkins v Gleeson (1983) 46 ALR 207, Blackburn J said (at 209):

“In my opinion, if the reasoning by which a court comes to its decision to allow an appeal requires at any stage the determination of a question of law which was disputed before it, then the appeal can be said to have succeeded on a question of law for [present] purposes ...”  (emphasis added)

In the present case, the appeal succeeded (to the extent that it did succeed) on a question of fact.  It is true that at pp 30-1 and at 112 in our reasons, reference is made to the well known authorities in this area.  But the principles there established were not, and could not be, disputed before us.

In Phipson Nominees Pty Ltd v French (1989) 91 ALR 509, Miles J held that an appeal had succeeded on a question of law when the issue before the appellate court (on which the Full Court was itself divided) was the scope of the principle in Warren v Coombes (1979) 142 CLR 531. But in the present case, as has been noted, there was no basis for any such debate.

In Jenkins v Gleeson, above, Blackburn J (at 208) described the reasoning on one aspect of an appeal that had succeeded as “... a decision of fact, as an inference from primary facts. It is not a decision of law, [e.g.] that there was no evidence to support the trial judge’s finding”. The present case can also be described as a decision on the facts. It is well established that want of logic is not synonymous with an error of law (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356).

It follows, in our view, that the appeal, to the extent to which it was allowed, succeeded on a question of fact.  It further follows that we have no jurisdiction in the application, so that the occasion for any possible exercise of our discretion does not arise (cf Bullock v The Federated Furnishing Trades Society of Australia (1985) 10 IR 18).

ORDERS

We make the following orders:

1. As to the costs of the appeal, we make no order.

1. As to the costs of the trial, order that the orders made by the trial judge be set aside (save as to the costs reserved on 14 November 1994 in respect of the question of privilege); and order in lieu thereof, that the costs at first instance abide the order of the new trial judge.

1. Refuse the respondent’s application for a certificate under the Federal Proceedings (Costs) Act 1981.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            11 July 1997

Written Submissions for the Appellants:       Ms P. Wines

Solicitor for the Appellants:  Blake Dawson Waldron

Written Submissions for the Respondent:     Mr R. Smith

Solicitor for the Respondent:  Deacons Graham & James