Milu v Smith

In the Federal Court of Australia, the case of Milu v Smith involved a dispute regarding the costs associated with legal proceedings. The respondents, who were not parties to the original proceedings, sought to recover costs incurred in relation to applications made in other cases. The primary issue before the court was whether the second and third respondents were entitled to be reimbursed for the costs they had incurred in presenting an unarguable case in court. The case also examined the principles applicable to the awarding of costs against a barrister for a party, specifically when the case presented was plainly unarguable.

The court considered whether the second and third respondents, who were not parties to the original proceedings, could recover their costs from the respondent in the initial case. It was acknowledged that the costs incurred by the second and third respondents were significant, and the court had to determine the appropriate basis for assessing these costs. The court held that the costs should be assessed on an indemnity basis, meaning the respondent would be liable for all costs incurred by the second and third respondents. The court emphasised that the principle of indemnity costs was applicable in cases where a party or their representative presents a plainly unarguable case to the court.

In its judgment, the court concluded that the respondent to the initial applications was liable for the costs incurred by the second and third respondents. The court found that the case presented by the second and third respondents was plainly unarguable, justifying the award of indemnity costs. The court did not make any order regarding the costs of the applicant in the initial case, as the focus was on the costs incurred by the respondents. The final orders required the respondent to pay the costs of the second and third respondents on an indemnity basis, with no order made in respect of the applicant's costs.