Murugesu v AUSTRALIAN Post
[2017] FCCA 2830
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURUGESU v AUSTRALIAN POST & ANOR | [2017] FCCA 2830 |
| Catchwords: INDUSTRIAL LAW – Ruling on competing costs applications. |
| Legislation: Federal Court of Australia Act 1976 (Cth), ss.43(2), 43(3)(c) |
| Cases cited: Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No. 2) (1996) 70 FCR 236 |
| Applicant: | VISWANATHAN MURUGESU |
| First Respondent: | AUSTRALIAN POST |
| Second Respondent: | JOHN BOYLE |
| File Number: | MLG 400 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 9 November 2017 |
| Date of Last Submission: | 9 November 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 29 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Staindl |
| Solicitors for the Applicant: | Arnold Thomas Becker |
| Counsel for the Respondents: | Mr McKenney |
| Solicitors for the Respondents: | Ashurst Australia |
ORDERS
The Respondents’ pay the Applicant's costs of the application in a case filed 6 July 2012.
The Applicant pay the Respondents' costs of the adjournment application heard on 13 August 2015.
Otherwise, the Respondents’ pay 80 per cent of the Applicant's costs of the proceeding.
All of the above costs be taxed on a party/party basis pursuant to the Federal Court Rules by a Registrar of the Court in default of agreement.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 400 of 2012
| VISWANATHAN MURUGESU |
Applicant
And
| AUSTRALIAN POST |
First Respondent
And
| JOHN BOYLE |
Second Respondent
REASONS FOR JUDGMENT
Introductory
This is the costs dispute at the end of a proceeding which has been on foot since May 2012. It is appalling that it should have taken this long to come to conclusion. Even more regrettably, the last year of delay, at least in part - and I accept in large part – is due to an oversight by the Court itself. All that is now left is costs, but typically for the conduct of the parties in this proceeding, it has given rise to a not insignificant controversy.
The Procedural History so Far as Relevant
Following exchanges of views, the respondents took out an application for summary judgment which was heard by Judge Connolly on 5 March 2013. His Honour's judgment, delivered on 31 July 2013, dismissed the respondents' application. Paragraph 6 of the applicant's statement of claim was struck out with leave to replead, and the costs of each party were reserved to final hearing. It should be noted in paragraph 17 of his Honour's reasons, his Honour said:
So far as the allegation with respect to the physical injury is concerned, the respondents submit that there is a lack of connection between the statement of claim and the unlawful conduct that is prescribed by the Racial Discrimination Act and I accept that argument and that, in its current format, the applicant would not have a reasonable prospect of successfully prosecuting that aspect of the proceedings. However, given the relatively serious nature of the physical injury and the fact that the applicant has a reasonable prospect of success with respect to other claims, I am prepared to allow the applicant the opportunity of amending this aspect of the pleadings.
The applicant was therefore required to replead one paragraph of his statement of claim. I note that the applicant was expressly not ordered to pay the costs associated with the repleading.
The matter ultimately proceeded to trial for four days in August 2015, commencing on 17 August. On 13 August 2015, the applicant sought to adjourn. That application was unsuccessful, and the costs of the day were reserved.
On 12 November 2015, I gave judgment. I will return to the terms of the judgment in due course. I noted at the conclusion of the judgment relevantly:
As I have earlier indicated, I am presently minded to hear them further as to the question of the appropriate remedy given that I have not adopted the position that either party propounded.
Thereafter, the matter lay fallow, so to speak, for quite some time. I recall being informed that endeavours to mediate were under way. These endeavours were not successful, and the matter was the subject of a quantum hearing, if I may so describe it, on 8 August 2016, following which I gave judgment on 15 September 2016. I ordered the respondents to pay the applicant $40,000.
On the same day, 15 September, following some discussion with parties (the transcript is available), I set a timetable for written submissions. I note that I ordered both parties to limit their written submissions to four pages.
The applicant nominally complied with that order on 6 October 2016, and counsel's written submissions did, indeed, run to four pages. An accompanying affidavit of the applicant's solicitor, Mr Ridley, however, occupies all or part of some eight pages, with many pages of annexures thereafter.
The responding written submissions of the respondent, filed 13 October 2016, run to five pages but, once again, annexe numerous other pages as well.
There the matter stood, very regrettably, for quite some period of time. It is clear that both I and the parties simply overlooked the question of the delivery of judgment on the costs issue. The matter was eventually raised by an email from Mr Ridley to my associate, dated 12 September 2017. Following receipt of that email, ultimately the matter was listed for mention, simply to try and get some order into the matter. In large part, this was necessitated by the fact that during the intervening period of over a year, the enormous file on the Murugesu case has simply disappeared.
In the ultimate, I directed that the respondents file any affidavit they might wish to in response to Mr Ridley's affidavit, within a prescribed time, should it be that I was against their submission that Mr Ridley's affidavit be received.
The overlooking of this ruling is a matter of considerable personal regret. No judgment of mine has ever been over three months from reservation. It arises, if one may say so, to an extent out of the sheer pressure of work in the list, and the fact that the parties, it would appear, under equal pressure of work, simply overlooked the matter also.
Having said all of this, it is clear that the matters raised by the parties' submissions are well capable of being addressed, despite the lapse of time, as they constitute written submissions and documentary material which is not the subject of any dispute.
The Relevant Law as to Costs
Costs are an issue routinely and frequently litigated. Nothing stabs the vitals of a lawyer's heart, it would seem, more than cost issues. Most recently, McKerracher J observed in Sandini Pty Ltd v Commissioner of Taxation (No. 2) [2017] FCA 905 (‘Sandini’) at [4]:
Relevantly to this costs debate, it is well established that:
(a) ordinarily costs follow the event and are on a party and party basis: Federal Court Rules 2001 (Cth) (FCR), r 40.01 and see Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 255 per Sheppard J (at 232);
(b) the Court can order that costs be paid on another basis (r 40.02 FCR), including on an indemnity basis (r 40.02, Note 1 FCR);
(c) the circumstances of the case must be such as to warrant a departure from the ordinary case (Colgate (at 233)). There should be some special or unusual feature in the case (Colgate (at 233)) and while categories of case warranting departure from the usual rule have been listed from time to time, those categories are not closed (Colgate (at 233), Donoghue v Commissioner of Taxation [2015] FCA 301 per Logan J (at [11]));
(d) wilful disregard of known facts or clearly established law, conducting litigation with an ulterior motive, making allegations or contentions that ought never have been made and prolonging a case unnecessarily can attract an indemnity costs order (Colgate (at 233 – 234) and Donoghue (at [12]));
(e) the rationale for an indemnity costs order is not punitive; rather it is compensatory (Donoghue (at [19]));
(f) an indemnity costs order can relate to part of a case (Donoghue (at [19]));
(g) cases (and in light of the above parts of cases) manifestly weak from the outset can attract such an order (Lamesa Holding BV v Commissioner of Taxation [1999] FCA 738 per Sackville J (at [3]));
(h) the phrase ‘costs as between party and party’ as defined in the Dictionary of Sch 1 FCR as ‘only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation’;
(i) the Court has a broad discretion on the issue of costs: see s 43(2) of the Federal Court of Australia Act 1976 (Cth), which provides that ‘except as provided by any other Act, the award of costs is in the discretion of the Court or Judge’. This discretion is absolute and unfettered, subject to the requirement that it be exercised judicially (Re Wilcox; Ex parte Venture Industries Pty Ltd [1996] FCA 1942; (1996) 72 FCR 151 (at 152));
(j) the Court is explicitly empowered to order the parties to an action to bear costs in specified proportions (s 43(3)(c) of the Act);
(k) the Court can apportion costs between the parties by taking into account the success (or lack of success) of the parties on an issues basis, so as to do ‘substantial justice’ between the parties (McFazdean v Construction Forestry Mining and Energy Union [2007] VSCA 287; (2007) 20 VR 250 (at [153]) and Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 (at [14] – [16])); and
(l) the Court will apportion costs between the parties on a broad basis as a ‘matter of impression and evaluation rather than arithmetic precision’ (Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114 (at [5])).
I note in particular subparagraphs (j) – (k) above. Copious authority to this effect is set out in the written submissions of the respondents, and it is not necessary to repeat it. It is well established that in an appropriate case, the Court may apportion costs on an issues basis.
The Parties' Written Submissions
Applicant's Submissions
The applicant's submissions point first to the scope of the award made in general damages, submitting that this:
…is reflective of the serious examples of racial discrimination perpetrated against the applicant.
The submissions then go on to tax the respondents with failing to properly appreciate the seriousness of the applicant's case. They point to the largely unsuccessful application for summary judgment. They point to the ordinary rule that costs follow the event, and submit that this is what is appropriate.
The submissions then go on to deal with the Calderbank offers made by the respondents from time to time, noting that they were largely contingent upon settlement of possible common law proceedings. In respect of the common law claims that the respondents sought the applicant to compromise, reference is made to the affidavit of Joseph Thomas Ridley, sworn 6 October 2016, in which Mr Ridley deposes that the applicant's common law claim (a copy of the draft statement of claim being annexed to the affidavit) would substantially exceed the sums awarded to Mr Murugesu in this case, and/or offered in the Calderbank offers made.
The submissions seek to answer in advance three arguments that might be put against them. The first is the order made by Judge Connolly for repleading the statement of claim. The second is the lack of success in relation to the claim that the 8 July 2011 incident constituted racial discrimination; and, third, the unsuccessful claim for aggravated damages and/or exemplary damages.
It should be noted that at paragraph 14, there is a perhaps faintly asserted claim for indemnity costs. This is put on the basis that by letter dated 20 March 2014, the applicant offered to accept the sum of $65,000 inclusive of legal costs. The alleged offer is exhibit JR3 to Mr Ridley's affidavit. It should be noted that in addition to offering to accept $65,000 inclusive of costs, the applicant sought that there be no no disparagement clause, which the respondents were seeking. The assessment in Mr Ridley's affidavit that, by the time that letter was written, the applicant's costs were in excess of $25,000 is merely put as a bald assertion.
Otherwise, the applicant's written submissions point to what is said to be the unsatisfactory conduct of the case on behalf of the respondents, including the non‑attendance by Mr Boyle at any of the mediations. The submissions assert in paragraph 15:
Secondly, the conduct of the Respondents in respect to their bullying tactics is disclosed in the affidavit of Mr Ridley. The Court should voice its disapproval of such tactics by awarding the Applicants’ full costs, including any costs associated with Mr Ridley's notification to the Legal Practitioners Liability Committee or, alternately, party-party costs on a standard basis.
I note that the final paragraph of the submissions sought to reserve an opportunity to be further heard, but it should be noted in passing that when the matter was listed for mention recently, neither party sought any such hearing.
The Affidavit of Mr Ridley
It should be noted that this affidavit has been the subject of objection.
Mr Ridley is the legal practitioner having conduct of the matter on behalf of the applicant. His affidavit traverses the application to strike out the initiating statement of claim. It traverses the Calderbank offers. As earlier indicated, it refers to the applicant's offer to settle. It traverses the correspondence from the respondent dated 19 August 2015 (exhibit JR9) which relevantly asserts:
Your conduct in the course of these proceedings has been discourteous, unresponsive, unreasonable and has wasted the time of the Court and that of the respondents. We put you on notice that the respondents will seek to be heard on the issue of costs to be awarded against you and your client in due course.
The affidavit goes on to traverse subsequent interaction with the Legal Practitioners Liability Committee as a result of this correspondence.
The affidavit annexes a copy of a proposed workers compensation common law claim, which I note covers the period from 2007 to 2011. Mr Ridley opines at paragraph 30:
I assess the Applicant's common law claim for damages against Australia Post to be greatly in excess of any of the above Calderbank offers made by the respondent in this matter.
The Respondents' Written Submissions
The respondents' submissions commence by setting out, and with emphasis, the applicant's failure in respect of the claim that the 8 July 2011 incident was the subject of racial discrimination. The submissions traverse authorities, to which I have already referred in a general way, in support of the uncontroversial (in my opinion) proposition that in appropriate cases, the costs outcome should reflect the discrete issues determined in the case. They also cite authority for the proposition, once again uncontroversial, that in appropriate cases, an unsuccessful party may not only be deprived of their own costs, but be ordered to pay the opponents' costs as well.
In paragraph 10, matters are set out that support the apportionment of costs. I refer to and have regard to all of the matters there set out, but would note the following:
(d) the 8 July incident claim was doomed to fail.
The respondents sought to have it struck out, and at all times maintained the claim was doomed to fail, and defended it accordingly.
The written submissions went on to refer to alleged failure by the applicant to comply with court orders in the preparation of the case, and set out at annexure B a tabulation of those matters.
Otherwise, the submissions are essentially responsive to the applicant's submissions. I note that they point to their alleged success before Judge Connolly, and the desirability of making Calderbank offers covering all aspects of possible dispute between the parties. They point to the applicant's failure in relation to the 8 July incident, the quantum of damages awarded, and the failure to achieve aggravated and exemplary damages.
Otherwise, I note that at paragraph 21, the respondents take issue with the filing of the affidavit of Mr Ridley. The paragraph in which this complaint is made concludes:
Leaving aside that so much of the affidavit is inadmissible and typical of the manner in which the applicant's lawyers have conducted themselves.
This casual insult is, I regret to say, typical of the otherwise bullying and intimidatory nature of the respondents' correspondence. Examples would include exhibit JR5, an email from Mr Amendola of the respondents' solicitors to Mr Ridley, which reads relevantly:
I suggest you review your attitude. Our client's strike‑out application was not unsuccessful. It was successful in part and your client's amended pleading has not remedied the matters about which your client had to replead. The original settlement proposal put by our client was bog standard normal and you accepted it in principle and then reneged when you came to understand what was involved. That was your choice and not our responsibility.
I am happy to deal with these matters at the Law Institute if that's what you want. Alternatively, you can pull your head in and get on with the mediation.
I also refer to exhibit JR9 to which I have already referred above, in which the respondent boldly and baldly asserts that the conduct of the applicant's solicitors had been inappropriate and threatens a personal costs application.
The Issues
It will be readily apparent that the parties have scarcely been particularly restrained in this costs aspect of the dispute. The issues that I will deal with in terms are as follows:
(1)Should Mr Ridley's affidavit be received;
(2)What should the Court make of the proceeding before Judge Connolly;
(3)Who should pay the costs of the adjournment application on 13 August 2015;
(4)What should the Court make of the relative success of the parties in the proceeding;
(5)What should happen about the Calderbank letters;
(6)What should the Court make, if anything, of the alleged impropriety of the parties' legal representatives.
The Affidavit of Mr Ridley
It is quite true, of course, that leave was not granted for an affidavit to be filed. The reality is, however, that the methodology adopted by the respondent has been essentially the same as that of the applicant, save that the correspondence was not put on affidavit. Although Mr Ridley's affidavit at times, in my view, embarks upon the giving of expert evidence in circumstances which are manifestly unsatisfactory, most of the affidavit is facultative. The two areas where the affidavit is, in my view, inadmissible, are paragraph 12 insofar as Mr Ridley purports to give an estimate of the applicant's legal costs at the time of the applicant's letter of offer on 20 March 2014, and his various assertions that the common law claim now under way, or likely to become under way, would necessarily have involved figures of one dimension or another.
Whilst it may well be, and on the face of the paper seems likely, that Mr Ridley would be competent to make an estimate of this sort, given his period in practice, the giving of expert evidence as to costs incurred and/or the likely quantum of a claim, in my view, is objectionable in circumstances where the respondents are not able, and nor is the Court, to evaluate the force of those assertions. This is all the more the case in the context of the proposed common law proceeding, given that, of course, this Court has made no pronouncement that would bear upon its chances of success, and in relation to the 8 July 2011 incident, has expressly refrained from doing so.
Nonetheless, in substance, the respondents have done exactly what the applicant has done, and the written submissions relating to noncompliance go farther in paragraphs 12 to 14 than making submissions. They involve bald assertions of misconduct on the part of the applicant's solicitors. The table at Annexure B sets out what in the scheme of things are only minor transgressions. Neither party, in my view, emerges unscathed.
The Proceeding Before Judge Connolly
Judge Connolly dismissed the respondents' application in a case. He was satisfied that most of the applicant's claims disclosed a claim that had reasonable chances of success. He permitted the applicant to replead his statement of claim in relation to the 8 July 2011 incident, because:
In its current format, the applicant would not have a reasonable prospect of successfully prosecuting that aspect of the proceedings.
Nonetheless, he permitted the applicant to replead, and he ordered that the costs of each party be reserved to final hearing. As I have earlier indicated, his Honour did not make an order that the costs thrown away by virtue of the repleading be paid by the applicant, but rather that they be reserved to the final hearing.
Looked at in substance, what his Honour did, in my view, was to make an order for costs in the cause, even though it was not framed in such terms. Even if I am wrong as to that conclusion, the respondents' success in the application in a case, taken as a whole, was wholly trivial and, in my opinion, the applicant, who was in the ultimate able to prosecute his case to judgment, should have the costs of that hearing.
The Adjournment Application on 13 August 2015
An examination of the transcript of the hearing on 13 August 2015 shows that the applicant always faced an uphill task. The application for an adjournment faced obvious difficulties which I canvassed in some detail with counsel for the applicant. I did not grant the adjournment application. Although costs were reserved, I suspect as a matter of expediency, given other matters likely to have been in the list, the fact is that there is no reason why the respondents should not have their costs of that adjournment application. The application was wholly unsuccessful.
The Parties' Degree of Success in the Proceeding
It should be noted that the applicant was ultimately successful. He obtained judgment for a substantial amount of damages. This was never conceded in any way by the respondent, and the applicant had to fight strenuously in the liability and quantum hearings to obtain it. It was resisted vigorously at every turn.
It is, of course, true to say that the 8 July 2011 incident did not lead to the findings that the applicant sought. It is also true that this incident took a certain amount of the Court's time. Contrary to the assertions made by the respondents, however, the liability judgment does not indicate that this issue occupied an excessive amount of time. So far as I can now recall, and perhaps unsurprisingly, this single - albeit very important to the applicant - incident was dealt with relatively briefly in both the evidence of Mr Murugesu and that of Mr Boyle. The same can be said of Mr Marney, Mr Georgakopoulos, Mr Tsalis, Mr Hunter and Mr Ven Den Berg. It occupied no time with Ms Currie at all.
It is, of course, the case that the 8 July 2011 incident was a very important one in Mr Murugesu's mind. So much was apparent from Mr Murugesu's demeanour, and the way in which he has pursued this aspect of his claim (I refer to my judgment in this regard). I accepted that Mr Murugesu found the events of racial discrimination that I did find to have occurred distressing. I also found at paragraph 241:
Mr Murugesu very sincerely believes that he was assaulted violently by Mr Boyle.
I also noted in the same paragraph:
Whether he is right as to the extent of the physical contact between them (and I have made it clear that he is wrong as to his perception as to its motivation) there is no questioning his sincerity.
The fact that Mr Murugesu ran this issue to trial is consistent with the findings that I made. He did not succeed because I found that Mr Boyle was not activated by any discriminatory intent.
As the authorities make clear (see for example Sandini at [4](1)), the apportionment of costs in such circumstances is not a matter of seeking to, as it were, weigh the respective portions of the transcript, or count the respective paragraphs in the total judgment relating to this particular sub‑issue. It should be noted that, as I have said, I entertain no doubt that, albeit mistakenly in the sense that he was not able to ultimately prove it was more probable than otherwise, Mr Murugesu undoubtedly believed in his case. There was nothing vexatious or improper in his seeking to have it ventilated. Furthermore, the question as to whether or not the 8 July 2011 incident involved an injury is itself likely to be before another court for determination in due course, albeit it would seem, in a continuum of asserted alleged facts.
In my view, it is appropriate that the applicant receive 80 per cent of his costs, looking at his success overall. It should be noted that the claims for aggravated and exemplary damages, upon which the respondent seeks to rely, occupied a trivial amount of time in the proceeding as a whole.
The Calderbank Letters
Calderbank letters, like costs issues generally, have received frequent attention from the courts. In Beling v Sixty International SA (No. 2) [2015] FCA 355, Mortimer J relevantly said at [23] to[25]:
Where an offer to settle a proceeding is made, and the party to whom it is made refuses the offer and then obtains a less favourable outcome at trial, the principles in Calderbank entitle, but do not require, the Court to order that party to pay the offeror’s costs on an indemnity basis from the date the offer expires or was refused: Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 at [217]-[218] per Miles, Heerey and Madgwick JJ.
A key factor is whether the moving party can prove that the refusal of the offer was unreasonable in the circumstances: MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No. 2) (1996) 70 FCR 236 at 239 per Lindgren J. The "circumstances" which must be examined are those existing at the time of the rejection of or failure to accept the offer: Kiefel v State of Victoria [2014] FCA 411 at [38] per Tracey J.
In determining whether it was unreasonable for the offeree to refuse the offer, Warren CJ, Maxwell P and Harper AJA in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSCA 298 at [25] set out a number of factors which ordinarily would be relevant to consider:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed at the date of the offer;
(e) the clarity with which the terms of the offer were expressed; and
(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.
Her Honour revisited those remarks in Shape Shopfitters Proprietary Limited (No. 4) [2017] FCA 1277, and asserted relevantly at [13]:
The governing consideration is the reasonableness, or rather the unreasonableness, of the party’s refusal of the offer at the time it was made, and in the circumstances in which it was made and refused.
The offers the respondents made in letters dated 23 January 2014 and 19 February 2014 offered the applicant a settlement in gross terms of:
…all claims the applicant may have arising out of, or in connection with the matters the subject of the proceeding.
The two offers also required non‑disparagement, something Mr Murugesu opposed, reasonably in my view given the history of his employment.
In circumstances where both parties were well aware that the applicant might proceed with a common law claim, it is immediately apparent that, at the very least, the extent of the compromise offered was open to question. The offers were also not easy to disaggregate insofar as the proceedings had been under way for some time (since 2012), and the offers, on any view, were inclusive of costs. It is not possible for the Court to be satisfied quite what the net result of the offers would have been.
The extent of the offers is perhaps made clearer by the subsequent offers made on 18 June 2014 and 7 August 2015 and 31 March 2016. The letter of 18 June 2014 offered the applicant $10,000 for his claim with the carve‑out of the compensation claim. The letter of 7 August 2015, by which time costs had obviously considerably increased, given the proximity to the posited trial date, of $55,000 gross (once again, being subject to the difficulties with costs to which I have referred), and the final letter of offer relied upon by the respondent offered him $20,000 plus costs. He easily defeated the first and third of those offers and, in my view, the other offer was insufficiently precise that it should give rise to any cost consequences.
I should note also that by no means all of those offers gave the applicant a reasonable period of time. The offer of 19 February 2014 was left open until 21 February 2014. The offer of 7 August 2015 was left open until 10 August 2015. The offer of 31 March 2016 was left open until 7 April 2016, this last being arguably a reasonable period of time.
One of the other matters which is of significance, however, is the applicant’s assessment of his prospects of success at the date of the offers. Despite the over‑muscular assertions in the respondents' submissions that the 8 July 2011 claim was doomed to fail, in my opinion this was never the case. The fact is that Mr Murugesu passionately believed that he had been injured as a result of racially motivated behaviour on Mr Boyle's part. Given that, contrary to the respondents' strenuous denials, Mr Boyle undoubtedly did racially abuse Mr Murugesu, and that this had a big effect upon him, as the quantum judgment shows, Mr Murugesu's conduct in sticking to his case was not, in my view, in any sense capricious or misconceived or unreasonable. He thought he would be believed and, in large part, was.
Taking all these matters into consideration, it is, in my view, clear that:
a)It is not at all clear whether, on the respondents' best conceivable case, the Calderbank offer was not defeated by the ultimate outcome; and
b)Further and in any event, this is an inappropriate case in which to apply what might be described as Calderbank principles in the respondents' favour.
In this regard, however, there is a further matter I should deal with now, which is the conduct of the parties.
The Conduct of the Parties
Both sides have, to an extent, invited the Court to utilise the costs decision to, as it were, punish the other for what is asserted to be less than adequate, if not improper, conduct by the legal representatives in the proceedings. There are aspects of the respondents' communications which I find unattractive, as I have said. Every point in almost every piece of correspondence is put at its absolute highest, and the tenor of the correspondence generally is patronising through to derogatory towards the applicant and his representatives. If ever there was a case of the, "You can never win. Why do you not surrender reasonably to us now," style, this is it.
Nonetheless, neither side in my view covers itself in glory in asking the Court to adjudicate these matters. To do so properly would require to put the practitioners in the witness box, and assess the totality of their conduct and their credit. These, in the ultimate, are matters perhaps for disciplinary bodies. They are, in my view, however, irrelevant to the issue of costs.
Conclusion
In my opinion, for the reasons given, the respondents’ should pay the applicant’s costs of the application in a case filed 6 July 2012 and the applicant should pay the respondents’ costs of the adjournment application heard on 13 August 2015. Otherwise, the respondents’ should pay 80 per cent of the applicant’s costs of the proceeding. All of the above costs will be taxed on a party/party basis pursuant to the Federal Circuit Court Rules by a Registrar of the Court in default of agreement.
This was a case of sufficient complexity and detail that it is not appropriate to be dealt with by the Court's fixed schedule of costs. A registrar will determine the no doubt numerous points of disagreement that the parties will be able to find.
Postscript
Since these reasons were composed in draft form, the Court has received an affidavit from the Respondents (filed pursuant to leave) of Daniel Fawcett. Also received is a letter from Messrs Arnold Thomas & Becker Lawyers dated 23 November 2017 (without leave). None of the matters in the affidavit or the letter cause me to alter the conclusions expressed in the draft, (now final) judgment.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 29 November 2017
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