Players P/L (in Liq) (Receiver Appointed) v Clone P/L (No 3)

In the case of Players P/L (in Liq) (Receiver Appointed) v Clone P/L (No 3), the Federal Court was required to consider the issue of costs, specifically the fees for two senior counsel retained by the Respondent. The Court was tasked with determining whether the costs incurred by the Respondent in retaining two senior counsel were incurred fairly and reasonably, and whether such costs were justified given the nature and complexity of the case.

The Court found that the engagement of two senior counsel was an unusual expense and would be justified only in cases of exceptional difficulty, complexity, or importance. The Court applied the test established in Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [No. 7], where the Court found that to allow costs of two senior counsel would further increase the costs for an unsuccessful litigant and would only be allowed where the case was of such difficulty, complexity, or importance to justify burdening the unsuccessful party with those costs. The Court observed that the emphasis was upon obtaining an adequate presentation to enable justice to be done, rather than upon the propriety of the steps taken by a litigant to ensure maximum success in their own cause.

The Court found that the costs incurred by the Respondent in retaining Mr Walker SC were not incurred fairly or reasonably. The Court observed that Mr Walker SC was retained only to present the argument raised by the Respondent’s Notice of Contention concerning the limitation issue and he appeared only at the hearing on 17 November 2016. The Court found that there was no apparent reason why the submissions on the limitation of actions issue could not have been presented by Mr Lockhart SC and Mr Colquhoun, who had already made the submissions on the limitation of actions issue at trial and had been prepared to present the submissions at the hearing on 8 and 9 August 2016. The Court found that the retention of Mr Walker SC was not necessary to adequately present the case, and disallowed the whole of the fees incurred by the Respondent in retaining Mr Walker SC.

The Court made orders disallowing the whole of the fees incurred by the Respondent in retaining Mr Walker SC, including the disbursement to Mr Walker in respect of his fees and the solicitors’ costs in retaining him.