Livestock Transport Pty Ltd v Commonwealth of Australia (No 3)

[2011] NSWSC 320

Supreme Court

New South Wales

Medium Neutral Citation:	Livestock Transport Pty Ltd v Commonwealth of Australia (No 3) [2011] NSWSC 320
Hearing dates:	14 April 2011
Decision date:	15 April 2011
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The plaintiff's costs of the defendant's application to have the proceedings transferred to the Supreme Court of Queensland, as agreed or assessed, to be payable forthwith upon the conclusion of such agreement or assessment.
Catchwords:	COSTS - whether should be payable forthwith - discrete application brought in broader interests of justice
Legislation Cited:	Jurisdiction of Courts (Cross Vesting) Act 1987 Uniform Civil Procedure Rules
Cases Cited:	Hamod v State of New South Wales [2007] NSWSC 707 Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432; (2002) 55 NSWLR 1
Category:	Consequential orders
Parties:	Livestock Transport (Sydney) Pty Ltd (plaintiff, respondent to the motion) Commonwealth of Australia (defendant, applicant on the motion)
Representation:	Counsel: G Gemmell (for the plaintiff) S Nixon (for the defendant) Solicitors: Indemnity Legal P/L (for the plaintiff) Blake Dawson (for the defendant)
File Number(s):	2009/297821

Judgment

1. On 11 April 2011, I delivered judgment on an application by the defendant to have these proceedings transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987. I dismissed the application and ordered the defendant to pay the plaintiff's costs.

1. When the proceedings next came before the court, the plaintiff made an application for an order under rule 42.7 of the Uniform Civil Procedure Rules that those costs be payable forthwith.

1. Rule 42.7 provides:

42.7 Interlocutory applications and reserved costs

(cf SCR Part 52A, rule 16; DCR Part 39A, rule 22; LCR Part 31A, rule 17)

(1) Unless th e court orders otherwise, the costs of any applicatio n or other step in any proceedings, including:

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

1. The rule contemplates as a default position, in the absence of any other order, that the costs of interlocutory applications will ordinarily be dealt with at the conclusion of the proceedings together with the general costs of the proceedings. The scope of the court's discretion to order otherwise was considered by Simpson J in Hamod v State of New South Wales [2007] NSWSC 707. Her Honour there referred with approval to the decision of Barrett J in Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432; (2002) 55 NSWLR 1 in which his Honour identified the following as factors relevant to an application of the present kind:

(1) where the costs order is relevant to a discrete, separately identifiable aspect of the proceedings;

(2) where there is demonstrated some unreasonable conduct on the part of the party against whom the costs have been ordered;

(3) where the proceedings have some distance and time to run, and it may be some time before ultimate disposition.

1. Plainly, that is not an exhaustive list. A court, in exercising its discussion under the rule, should have regard to the demands of justice as revealed in the particular case.

1. There was no suggestion in the present case that there was any unreasonable conduct on the part of the Commonwealth in making the application to have the proceedings transferred. However, as explained in my judgment delivered on 11 April 2011, the principal basis for the application was the existence of proceedings in the Supreme Court of Queensland in which a party unrelated to the plaintiff in the present proceedings brings a similar claim against the Commonwealth. In those circumstances the Commonwealth, whilst acknowledging that the transfer of the proceedings would visit a measure of inconvenience on the plaintiff, submitted that the broader interests of justice required the court to make the order sought.

1. In my view, the fact that the application was precipitated by circumstances entirely unrelated to any conduct of the plaintiff and put rather as being made in the broader interests of justice is a factor militating strongly in favour of the plaintiff's present application.

1. As to the other factors identified above, the Commonwealth does not dispute that the application related to a discrete, separately identifiable aspect of the proceedings, nor that the proceedings have some distance and time to run and that it may be some time before their ultimate disposition.

1. Against those considerations, however, the Commonwealth submitted that the plaintiff's application overlooks a significant matter, namely, the fact that the plaintiff itself has been ordered to pay the Commonwealth's costs of a discrete, unsuccessful application in the proceedings. The plaintiff moved the court last year for an order under rule 14.28 of the Uniform Civil Procedure Rules to have parts of the Commonwealth's defence struck out. In a judgment delivered on 2 February 2011, I expressed the view that the plaintiff's submissions misapprehended the Commonwealth's case and that the defences pleaded plainly raised a real question to be tried.

1. The plaintiff also sought an order to have the proceedings referred for mediation. On 7 February 2011, I declined to make that order. I indicated that I was not unsympathetic to the plaintiff's position but noted that the Commonwealth had determined as a matter of policy to defend any proceedings brought against it arising out of the events giving rise to the present claim. In those circumstances, I saw little utility in ordering mediation.

1. The plaintiff having been unsuccessful on its motion, I ordered it to pay the Commonwealth's costs. No application was made at that stage that the costs be payable forthwith. When the present application was made, however, it was submitted on behalf of the Commonwealth that the existence of the earlier costs order in its favour would render it unfair to order it to pay the plaintiff's costs of the unsuccessful transfer application forthwith. Mr Nixon, who appeared for the Commonwealth on the present application, submitted that the only fair way to deal with the application would be to order both sets of costs to be payable forthwith. He indicated, however, that the Commonwealth was concerned that if the costs were "set off" in that way, it may transpire that there would be a net amount payable to the Commonwealth by the plaintiff. He said that, in light of that risk, the Commonwealth made no such application.

1. Although I can understand the Commonwealth's reaction to the present application, I think the unfairness of treating the two costs orders differently is more perceived than real. The simple fact is that, upon publication of my earlier judgment in respect of the strike-out application, the Commonwealth did not see fit to make any application for a special order. The making of the present application does not alter the correctness of that approach. The Commonwealth's transfer application was precipitated by events entirely out of the plaintiff's control and, as a result, the plaintiff has incurred legal expenses in the name of the broader interests of justice. The factors identified by Simpson J in Hamod point strongly in favour of making the order sought and I am satisfied that it is appropriate to make that order.

1. I order that the plaintiff's costs of the defendant's application to have the proceedings transferred to the Supreme Court of Queensland, as agreed or assessed, be payable forthwith upon the conclusion of such agreement or assessment.

**********

Decision last updated: 18 April 2011