Lowe v Mack Trucks Australia Pty Ltd (No 2)

The case of Lowe v Mack Trucks Australia Pty Ltd (No 2) dealt with a dispute between the applicant, Lowe, and the respondent, Mack Trucks Australia Pty Ltd. The case involved a claim for indemnity costs and a discussion on the principles guiding such an award in Australian courts. The applicants argued that the late discovery of data and the preference of one witness's evidence over another warranted a deviation from the usual rule regarding costs. The court, however, found that the delays and the preference for one witness's evidence did not justify a departure from the usual rule of costs following the event, unless special circumstances warranted it.

The legal issues that the court had to resolve were whether the late discovery of data and the preference for one witness's evidence over another justified an indemnity costs order. The applicants argued that the late discovery of data and the preference for one witness's evidence warranted a departure from the usual rule of costs. However, the court found that the delays and the preference for one witness's evidence did not justify a departure from the usual rule of costs following the event. The court also found that the costs incurred in examining the data and conferring with experts and counsel were not sufficient to warrant an indemnity costs order.

The court found that the usual rule of costs following the event should apply, with the successful party receiving costs unless special circumstances warranted a different order. The court found that the circumstances of this case did not warrant a departure from the usual rule of costs following the event. The court also found that the applicants' concession that the data was discoverable and the preference for one witness's evidence did not justify an indemnity costs order. The court concluded that the applicants should pay the respondent's costs of and incidental to the proceeding, including reserved costs, on a party and party basis, except for the costs thrown away by reason of the abandonment of the two expert witness reports of Dr Arnold McLean and the costs incurred by reason of the late discovery of the CD-ROM containing the FORS raw data, which should be paid on an indemnity basis.

In conclusion, the court found that the applicants should pay the respondent's costs of and incidental to the proceeding, including reserved costs, on a party and party basis, except for the costs thrown away by reason of the abandonment of the two expert witness reports of Dr Arnold McLean and the costs incurred by reason of the late discovery of the CD-ROM containing the FORS raw data, which should be paid on an indemnity basis. The court also ordered that all documents relating to the schematics and/or construction of any vehicle designed and/or manufactured by the respondent which have been provided by the respondent to the applicants in any form whatsoever be returned to the solicitors for the respondent upon the expiration of time in which to appeal from the court's judgment or the determination of any appeal from that judgment (whichever is later).