Noel v Cook (No. 2)

Case [2004] FCA 721

FEDERAL COURT OF AUSTRALIA

Noel v Cook (No. 2) [2004] FCA 721

LORNA EVELIN NOEL V HARVEY COOK AND SAVINGS AUSTRALIA PTY LIMITED (ABN 94 006 457 987)

N1501 OF 2003

BENNETT J
4 JUNE 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1501 OF 2003

BETWEEN:

LORNA EVELIN NOEL
APPLICANT

AND:

HARVEY COOK
FIRST RESPONDENT

SAVINGS AUSTRALIA PTY LIMITED
(ABN 94 006 457 987)
SECOND RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

4 JUNE 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant is to pay the second respondent’s costs on a party-party basis.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1501 OF 2003

BETWEEN:

LORNA EVELIN NOEL
APPLICANT

AND:

HARVEY COOK
FIRST RESPONDENT

SAVINGS AUSTRALIA PTY LIMITED
(ABN 94 006 457 987)
SECOND RESPONDENT

JUDGE:

BENNETT J

DATE:

4 JUNE 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 22 April 2004, I delivered judgment in this matter in favour of the respondents, dismissing an application for review of a decision of the Superannuation Complaint Tribunal (Noel v Cook [2004] FCA 479). When judgment was delivered the second respondent made an application for indemnity costs.

    BACKGROUND

  2. On 18 November 2003, the applicant and the second respondent attended a case management conference conducted by a Registrar of this Court. On 16 December 2003, this matter was set down for hearing before me on 6 April 2004.

  3. The evidence is that, on 19 December 2003, the second respondent spoke to the applicant and in the course of that conversation offered the applicant an ex gratia payment of $5,000.00 ‘all inclusive in the interests of resolving this matter on a commercial basis’. The applicant accepted the offer during the conversation. On 22 December 2004, the applicant wrote to the second respondent. In that letter she:

    (a)rejected the offer made by the second respondent in the conversation on 19 December 2004; and

    (b)made an offer to the second respondent that the second respondent pay $4,000.00 of the death benefit to the first respondent and pay to the applicant the balance of the death benefit.

    The second respondent did not accept the applicant’s offer.

  4. On 16 February 2004, a letter that the second respondent submits was in accordance Calderbank v Calderbank [1975] 3 All ER 333 (‘the letter’) was forwarded by the solicitors for the second respondent to the applicant. On or about 2 March 2004, the applicant rejected the second respondent’s settlement offer conveyed in the letter.

  5. During the course of the hearing, on 6 April 2004, the second respondent indicated that, if it were successful, it would make an application for indemnity costs. On 22 April 2004, the second respondent sought an order, based on the applicant’s rejection of the offer contained in the letter, that the applicant pay its costs on an indemnity basis. In support of this application, an affidavit was tendered annexing the letter. I gave directions for the filing of evidence and submissions in relation to the application for indemnity costs.

  6. On 4 May 2004, the solicitors for the second respondent informed me that their application for indemnity costs was not being pressed. On 17 May 2004, I gave directions for the filing of submissions in relation to costs.

    THE APPLICANT’S SUBMISSIONS

  7. The only submission received from the applicant was that she ‘can not afford to pay the other party’s costs’ (original emphasis) and she seeks an order that each party pay her or its own costs.

    THE RESPONDENTS’ SUBMISSIONS

  8. No submissions were received from the first respondent, who did not attend the hearing and did not seek an order as to costs.

  9. The second respondent submits that, in the circumstances, particularly as it does not, despite the offer that was made in the letter, press its application for indemnity costs, the applicant should pay the costs of the successful second respondent on a party-party basis.

    CONSIDERATION

  10. Section 43(2) of the Federal Court Act 1976 (Cth) provides that the award of costs is in the discretion of the Court or the judge. In these matters, the ordinary course is that an unsuccessful party pays the costs of the successful party on a party-party basis (Harrigan v Department of Health (1986) 72 ALR 293 at 297).

  11. The applicant has not demonstrated why the ordinary course should not be followed in this matter. Accordingly, I order the applicant to pay the costs of the second respondent on a party-party basis.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             4 June 2004

Applicant appeared in person

No appearance by the First Respondent

Counsel for the Second Respondent:

V Heath

Solicitor for the Second Respondent:

Deacons

Date of Hearing:

6 April 2004

Date of receipt of submissions:

26 May 2004

Date of Judgment as to Costs:

4 June 2004
Details
AGLC
Noel v Cook (No. 2) [2004] FCA 721
Case
[2004] FCA 721
Decision Date

CaseChat Overview and Summary

The case Noel v Cook (No. 2) was brought before the Federal Court of Australia, following a previous judgment in Noel v Cook [2004] FCA 479. The second respondent sought indemnity costs after the applicant rejected a settlement offer made under Calderbank v Calderbank [1975] 3 All ER 333. The applicant had initially accepted a $5,000.00 settlement offer made by the second respondent, only to reject it later. Despite the offer, the second respondent proceeded with the case and indicated it would seek indemnity costs if successful. After the initial judgment, the second respondent withdrew its application for indemnity costs, but argued that the applicant should still bear the costs of the case on a party-party basis.

The legal issues the court needed to address were whether the ordinary rule that the unsuccessful party pays the successful party's costs should be applied, and if not, why. Section 43(2) of the Federal Court Act 1976 (Cth) provides that the award of costs is at the discretion of the Court or the judge. The established practice is that the unsuccessful party pays the costs of the successful party on a party-party basis, as per Harrigan v Department of Health (1986) 72 ALR 293. The court considered whether the applicant provided sufficient grounds to deviate from this norm.

The court found that the applicant had not demonstrated any exceptional circumstances that would justify a departure from the standard rule. The applicant merely stated that she could not afford to pay the other party's costs and requested that each party bear its own costs. Given the lack of compelling argument from the applicant and the fact that the second respondent did not pursue its initial indemnity costs application, the court deemed it appropriate to follow the ordinary course of awarding costs. Therefore, the court ordered the applicant to pay the second respondent’s costs on a party-party basis.

The final order was that the applicant was to pay the second respondent’s costs on a party-party basis, reflecting the court's decision to uphold the standard practice regarding costs in litigation.

Orders

Orders of the court

1. The applicant is to pay the second respondent’s costs on a party-party basis.

Background

Background to the litigation

On 22 April 2004, I delivered judgment in this matter in favour of the respondents, dismissing an application for review of a decision of the Superannuation Complaint Tribunal (Noel v Cook [2004] FCA 479). When judgment was delivered the second respondent made an application for indemnity costs.BACKGROUND On 18 November 2003, the applicant and the second respondent attended a case management conference conducted by a Registrar of this Court. On 16 December 2003, this matter was set down for hearing before me on 6 April 2004. The evidence is that, on 19 December 2003, the second respondent spoke to the applicant and in the course of that conversation offered the applicant an ex gratia payment of $5,000.00 ‘all inclusive in the interests of resolving this matter on a commercial basis’. The applicant accepted the offer during the conversation. On 22 December 2004, the applicant wrote to the second respondent. In that letter she:(a)rejected the offer made by the second respondent in the conversation on 19 December 2004; and(b)made an offer to the second respondent that the second respondent pay $4,000.00 of the death benefit to the first respondent and pay to the applicant the balance of the death benefit. The second respondent did not accept the applicant’s offer. On 16 February 2004, a letter that the second respondent submits was in accordance Calderbank v Calderbank [1975] 3 All ER 333 (‘the letter’) was forwarded by the solicitors for the second respondent to the applicant. On or about 2 March 2004, the applicant rejected the second respondent’s settlement offer conveyed in the letter. During the course of the hearing, on 6 April 2004, the second respondent indicated that, if it were successful, it would make an application for indemnity costs. On 22 April 2004, the second respondent sought an order, based on the applicant’s rejection of the offer contained in the letter, that the applicant pay its costs on an indemnity basis. In support of this application, an affidavit was tendered annexing the letter. I gave directions for the filing of evidence and submissions in relation to the application for indemnity costs. On 4 May 2004, the solicitors for the second respondent informed me that their application for indemnity costs was not being pressed. On 17 May 2004, I gave directions for the filing of submissions in relation to costs. THE APPLICANT’S SUBMISSIONS The only submission received from the applicant was that she ‘can not afford to pay the other party’s costs’ (original emphasis) and she seeks an order that each party pay her or its own costs. THE RESPONDENTS’ SUBMISSIONS No submissions were received from the first respondent, who did not attend the hearing and did not seek an order as to costs. The second respondent submits that, in the circumstances, particularly as it does not, despite the offer that was made in the letter, press its application for indemnity costs, the applicant should pay the costs of the successful second respondent on a party-party basis. CONSIDERATION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BENNETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

The second respondent submits that, in the circumstances, particularly as it does not, despite the offer that was made in the letter, press its application for indemnity costs, the applicant should pay the costs of the successful second respondent on a party-party basis. CONSIDERATION Section 43(2) of the Federal Court Act 1976 (Cth) provides that the award of costs is in the discretion of the Court or the judge. In these matters, the ordinary course is that an unsuccessful party pays the costs of the successful party on a party-party basis (Harrigan v Department of Health (1986) 72 ALR 293 at 297). The applicant has not demonstrated why the ordinary course should not be followed in this matter. Accordingly, I order the applicant to pay the costs of the second respondent on a party-party basis.