Salfinger v Niugini Mining (Aust) Pty Ltd (No 5)

FEDERAL COURT OF AUSTRALIA

Salfinger v Niugini Mining (Aust) Pty Ltd (No 5) [2008] FCA 1119

COSTS – application by respondent for gross sum costs order – claim of insufficient notice – failure to comply with court orders – lack of assets in Australia

Federal Court Rules O 62 r 4

Beach Petroleum v LV Johnson (1995) 57 FCR 119 cited
Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 cited
Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26 cited

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

VID 1388 OF 2006

HEEREY J
29 JULY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1388 OF 2006

BETWEEN:

RODERICK NEIL SALFINGER
Applicant

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 applicant pay to the first respondent pursuant to the order of 30 March 2007 the sum of $16,774 for costs.

2.The applicant pay to first respondent pursuant to the order of 29 August 2007 the sum of $1,169 for costs

3.The applicant pay to the first respondent pursuant to the order of 18 October 2007 the sum of $81,626 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 1388 OF 2006

BETWEEN:

RODERICK NEIL SALFINGER
Applicant

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. The first respondent (Niugini Mining) has several cost orders in its favour against the applicant Mr Roderick Salfinger.  The orders were made in favour of Niugini Mining against Mr Salfinger on 30 March 2007 (the Injunction Order), 29 August 2007 (the Adjournment Order) and 18 October 2007 (the Separate Question Order).  Niugini Mining now seeks orders pursuant to O 62 r 4 of the Federal Court Rules that the costs in respect of each of these three orders be assessed as gross sums.

2. O 62 r 4 relevantly provides as follows: 

   (2)      Where the Court orders that costs be paid to any person, the Court may further order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that person shall be entitled to:

   …

   (c)       a gross sum specified in the order; or

   (d)       a sum in respect of costs to be ascertained in such manner as the Court may direct.

   (3)      The Court may make an order under subrule (2) at any time, whether or not an order that costs be paid to a person has previously been made or entered.

3. The Chief Justice has issued Practice Note No. 27, which is to the effect that an application under O 62 r 4(2)(c) must be accompanied by an affidavit stating the…