Snorkel Elevating Work Platforms Pty Limited v The Nominal Defendant

Snorkel Elevating Work Platforms Pty Limited (the first appellant) and the Nominal Defendant (the first respondent) were parties to primary proceedings. The first appellant had lodged a Notice of Contribution against the second appellant. The first respondent challenged the retainer of the same counsel to act for both the first and second appellants, arguing this created a conflict of interest. The primary judge had dismissed the first respondent's challenge to the retainer but made an indemnity costs order against the appellants. The appeal concerned whether the challenge to the retainer was justified and whether the indemnity costs order was appropriate.

The Full Federal Court was required to determine two principal legal issues. First, whether the first respondent's challenge to the retainer of counsel by both the first and second appellants was justified. Second, whether the indemnity costs order made against the appellants in respect of that challenge was justified, notwithstanding the challenge's unsuccessful outcome at first instance.

The Court allowed the appeal, finding that the challenge to the retainer was not justified. The Court reasoned that the circumstances did not give rise to a conflict of interest that would warrant intervention. Consequently, the Court set aside the indemnity costs order made against the appellants in relation to the challenge to retainer and ordered that the first respondent pay the appellants' costs in respect of that challenge. The Court remitted the question of the extent of the costs order and whether the first respondent should pay the other respondents' costs to the trial judge. The first respondent was also ordered to pay the appellants' costs of the application and the appeal.