Salfinger v Niugini Mining (Aust) Pty Ltd (No 3)

[2008] FCA 1120

FEDERAL COURT OF AUSTRALIA

Salfinger v Niugini Mining (Aust) Pty Ltd (No 3) [2008] FCA 1120

RODERICK NEIL SALFINGER v NIUGINI MINING (AUSTRALIA) PTY LTD and STATE OF QUEENSLAND

VID 979 OF 2007

HEEREY J
29 JULY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 979 OF 2007

BETWEEN:

RODERICK NEIL SALFINGER
Appellant

AND:

NIUGINI MINING (AUSTRALIA) PTY LTD
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	29 JULY 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appellant pay to the first respondent pursuant to the order of Gordon J dated 24 April 2008 the sum of $4,619 for costs. 

2.The appellant pay to the first respondent pursuant to the order of the Full Court dated 5 May 2008 the sum of the $28,291 for costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 979 OF 2007

BETWEEN:

RODERICK NEIL SALFINGER
Appellant

AND:

NIUGINI MINING (AUSTRALIA) PTY LTD
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:	HEEREY J
DATE:	29 JULY 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application by the first respondent Niugini Mining for gross sum costs orders in respect of this appeal to the Full Court of the Federal Court.  There are two relevant orders in respect of which gross sum costs orders are sought:

   1.The order of 24 April 2008 refusing an adjournment of the appeal.

   2.The order of 5 May 2008 dismissing the appeal with indemnity costs.

2. Prior to hearing this application on 29 July 2008 I dealt with a similar application by Niugini Mining in respect of the costs of the proceeding at first instance: Salfinger v Niugini Mining (Aust) Pty Ltd (No 5) [2008] FCA 1119. I adopt what I said there as to the Rules, the applicable principles, the reasons why it is appropriate to make an order against Mr Salfinger and the question of service on Mr Salfinger of the relevant documents.

3. To return to the Full Court matter, Niugini Mining has obtained assessments from Hickey & Garrett, legal costs consultants, in respect of its costs in relation to each of the two costs orders made.  They are:

   1.In respect of the order of Gordon J of 24 April 2008, professional costs of $2,529 plus disbursements of $2,090, totalling $4,619.

   2.In respect of the order of the Full Court of 5 May 2008, professional costs of $11,905 plus disbursements of $16,386.20, totalling $28,291.20. 

4. It is apparent that these costs are significantly less than the actual costs incurred by Niugini Mining in defending the appeal.  Mr Lobban deposes and I accept that these sums are only a proportion of the costs that Niugini Mining would recover if it proceeded to a taxation of those costs.

5. Accordingly, I will order that:

   1.Mr Salfinger pay to Niugini Mining pursuant to the order of Gordon J dated 24 April 2008 the sum of $4,619 for costs. 

   2.Mr Salfinger pay to Niugini Mining pursuant to the order of the Full Court dated 5 May 2008, the sum of the $28,291 for costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:        31 July 2008

Counsel for the Appellant:	The appellant appeared in person by video link
Counsel for the First Respondent:	M T Brady
Solicitors for the First Respondent:	Blake Dawson Lawyers

Date of Hearing:	29 July 2008
Date of Judgment:	29 July 2008