Oswal v Apache Corporation (No 2) - [2014] FCA 778

FEDERAL COURT OF AUSTRALIA
Oswal v Apache Corporation (No 2) [2014] FCA 778

Citation: Oswal v Apache Corporation (No 2) [2014] FCA 778

Parties: PANKAJ OSWAL v APACHE CORPORATION

File number: WAD 389 of 2013

Judge: GILMOUR J

Date of judgment: 25 July 2014

Catchwords: PRACTICE AND PROCEDURE – costs – application for stay of proceedings dismissed and costs order made – subsequent request by applicant to vary costs order – no submission in relation to costs during the hearing – application dismissed

Legislation: Federal Court Rules 2011 (Cth) r 39.04

Cases cited: Ashby v Slipper (No 2) [2014] FCAFC 67
ACCC v Daniels Corporation Pty Ltd [2001] FCA 936
Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57
Grygiel v Baine (No 2) [2005] NSWCA 434
Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572
Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122

Date of hearing: Determined on the papers

Date of last submissions: 10 July 2014

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 10

Solicitor for the Applicant: Kennedys

Solicitor for the Respondent: Clyde & Co

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 389 of 2013

BETWEEN:
PANKAJ OSWAL
Applicant

AND:
APACHE CORPORATION
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

25 JULY 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application pursuant to r 39.04 of the Federal Court Rules 2011 (Cth), to vary the costs order made on 24 June 2014, be dismissed.
2.The applicant pay the respondent’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 389 of 2013

BETWEEN:
PANKAJ OSWAL
Applicant

AND:
APACHE CORPORATION
Respondent

JUDGE:

GILMOUR J

DATE:

25 JULY 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

The Court on 24 June 2014 dismissed the application by the applicant for orders staying the proceeding and ordered that the applicant pay the respondent’s costs of the stay application. It also ordered that the matter proceed to trial on all issues other than damages.
The applicant has applied pursuant to Federal Court Rules 2011 (Cth) r 39.04 for an order that the costs order, which has not yet been entered, be varied such that, rather than an order for costs in favour of the respondent, there be an order that the respondent pay 30% of the applicant’s costs of the application. The application was dealt with on the papers including further written submissions from both parties.
As a Full Court recently reiterated the discretionary power conferred under r 39.04 is to be used only sparingly, with great caution and rarely, having regard to the public interest in the finality of litigation. The discretion is exercised to cure injustice, particularly where it would otherwise be irremediable. The grounds for exercising the discretion are various but include error, oversight, a misapprehension of the law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oswal v Apache Corporation (No 2)

Details

AGLC: Oswal v Apache Corporation (No 2) [2014] FCA 778
Case: [2014] FCA 778
Decision Date

CaseChat Overview and Summary

Pankaj Oswal brought an application against Apache Corporation in the Federal Court of Australia. The dispute involved an application for a stay of proceedings, which was dismissed, and an order for the applicant to pay the respondent's costs of the stay application. Following this, Oswal applied to vary the costs order, seeking that the respondent pay 30% of his costs instead. The legal issues that arose from this application were whether the discretion under Federal Court Rules 2011 (Cth) r 39.04 should be exercised to vary the costs order, and if so, on what grounds. The court examined whether any of the grounds for exercising the discretion under r 39.04, such as error, oversight, or misapprehension of the law, applied to this case.

The court found that the discretion under r 39.04 should not be exercised to vary the costs order. The applicant's submissions were silent on why the discretion should be exercised in his favour and did not address any of the grounds for varying the costs order. Furthermore, the applicant made no submissions on costs during the hearing, despite the court raising the question. The court held that parties should ordinarily make submissions on costs during a hearing and that it is inappropriate for a party to say nothing about costs during the hearing and then ask the court to vary its orders later. The application for a stay was wholly unsuccessful, and there was no basis for setting aside the costs order. Consequently, the application to vary the costs order was dismissed with costs.

Orders