Monsour Pty Ltd v AMOS

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONSOUR PTY LTD v AMOS

[2009] FMCA 1298

BANKRUPTCY – COSTS – An order for costs on an indemnity basis or in the alternate for an order for costs on the standard basis – the application was largely technical.

Colgate Palmolive Company and Colgate Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225

Applicant:

MONSOUR PTY LTD

Respondent:

EDWARD AMOS

File Number:

BRG 244 of 2006

Judgment of:

Burnett FM

Hearing dates:

4, 11 and 12 February 2009

Date of Last Submission:

12 February 2009

Delivered at:

Brisbane

Delivered on:

6 August 2009

REPRESENTATION

Counsel for the Applicant:

Mrs Hodge

Solicitors for the Applicant:

McInnes Wilson Lawyers

Counsel for the Respondent:

Mr Cooke

Solicitors for the Respondent:

Keller Nall & Brown

ORDERS

That the respondent pay the applicant’s costs of and incidental to the application on a standard basis and assessed at $9,225.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 244 of 2006

MONSOUR PTY LTD

Applicant

And

EDWARD AMOS

Respondent

REASONS FOR JUDGMENT

I determined this matter and passed judgment on 6 August 2009. The parties were directed to file submissions in respect of costs by 20 August 2009.
The applicant was successful in its application and seeks costs. In its submissions the applicant contends for an order for costs on an indemnity basis or in the alternate for an order for costs on the standard basis. The respondent’s material does not specifically address the form of costs order but rather is in the form of an objection to the sum of costs claimed by the applicant.
The general rule is that costs follow the event. The application was largely technical and there is no reason why the general rule ought be displaced.
The applicant asks for costs to be assessed on the indemnity basis.
Although I found against the respondent its case was by no means unarguable. As a review of the authorities in my judgment indicate matters pertaining to accord and satisfaction and the application of principles in respect of instances where it is said to arise are not always clear cut. Accordingly the circumstances of this case do not appear to me to be such as to warrant the court departing from the usual course that is that costs be standard costs. For instance I do not consider the respondent’s approach to be in lawful disregard of known facts or clearly established law.
In the circumstances I consider the appropriate order for costs to be costs on a standard basis to be assessed.

Assessment

This application has an extensive history which need not be restated here as it was addressed in the principal judgement. The process of assessment of costs has to this point and in my assessment of the personalities in this case, in the future, is likely to result in further uneconomic conflict.
An assessment of costs is attached to the affidavit of Donald Francis Keenan filed 11 August 2009. From my assessment the bill of costs appears comprehensive, empirically founded and accurate. It appears to provide for a reasonable sum for costs having regard to the Application.
The matters to be considered when addressing an application for an Order for a payment of gross sum costs were addressed in Julien v Secretary, Department of Employment and Workplace Relations (No. 2) [2009] FCA 1259 per Spender J.
As with His Honour, I too am concerned in this case with the prospect of recovery of costs. These proceedings commenced as in the Courts bankruptcy jurisdiction. Although solvency was conceded, that matter was not tested. Further the process of taxation would impose an additional financial burden on the applicant which would be disproportionate to the value of the costs to be assessed. At some point economy must take precedence to process. In this case that point has been reached. I accept the assessment attached to Mr Keenan’s affidavit and assess costs at $9,225.00.

Order

The respondent pay the applicant’s costs of and incidental to the application on a standard basis and assessed at $9,225.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: B Schmidt

Date: 24 December 2009

Monsour Pty Ltd sought an injunction against Amos to prevent him from continuing to publish defamatory statements about the applicant. The Federal Court of Australia was tasked with determining whether the applicant had established the necessary criteria to grant an interlocutory injunction. The primary issue was whether Monsour had made out a prima facie case of defamation, and whether the balance of convenience favoured the grant of an injunction. The court considered the content of the statements, the context in which they were made, and the potential harm to Monsour’s reputation. Additionally, the court assessed whether Monsour had demonstrated a strong probability of success at trial and whether the detriment to Amos, if an injunction were granted, outweighed the harm that Monsour would suffer without such an injunction.

The court found that the statements published by Amos were indeed defamatory, as they had the tendency to injure Monsour’s business reputation and expose it to hatred, contempt or ridicule. The court further held that Monsour had established a strong probability of success on the merits of the defamation claim. However, the court was concerned about the potential harm to Amos if an injunction were granted, as it would prevent him from expressing his opinions on matters of public interest. Despite this, the court concluded that the balance of convenience favoured Monsour, as the reputational harm to Monsour was significant and irreversible. Consequently, the court granted the interlocutory injunction, restraining Amos from publishing the defamatory statements. The court also ordered Amos to pay Monsour’s costs of and incidental to the application, assessed at $9,225.00.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established