Taprobane Tours W.A. Pty Ltd v Singapore Airlines Pty Ltd

[1990] FCA 580

"

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1	NO. WAG 124 OF 1987
B E T W E E N :	TAPROBANE TOURS W.A. PTY. LTD.

Applicant

and

SINGAPORE AIRLINES LIMITED

Respondent

CORAM: LEE J.

DATE : 4 SEPTEMBER 1990

EX TEMPORE REASONS FOR JUDGMENT

The applicant seeks an order pursuant to 0.62 sub- r.36A(l) of the Federal Court Rules that the costs ordered to be paid in this matter not be reduced by one-third of the amount otherwise allowable. The respondent resists that order and seeks a further order that the applicant not be awarded costs for the whole of the trial in that the applicant recovered substantially less than the amount of damages it had sought.

REOISTRY

There are some particular elements to consider when looking at the question of the costs to be awarded in this matter.

RECEIVED

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

Certainly when the amount awarded is as low as this, and the matter has taken eight days to hear, the Court has to scrutinize very carefully where the burden of costs should lie, if only to preserve the integrity of the Court's own position to ensure that its time is not taken up unnecessarily with matters that either should be the subject of negotiation and settlement if they are going to take that time to hear or should be presented in a more refined way so that there is some correlation between the time spent and the worth of the claim.

Other important elements in this case were, firstly, that it was a proceeding under Pt.IV of the Trade Practices Act 1974 ("the Act") and in particular s.46 of the Act.

This was not a matter which could have been commenced in, or transferred to, a State Court applying a lesser scale of costs because ss.86 and 86A of the Act did not apply to the proceeding and, therefore, the matter could only

be litigated in the Federal Court, notwithstanding how modest the claim for damages may have been. The cross-vesting	legislation has had no impact upon that situation for if the
matter had been commenced in the Supreme Court it would have been a special federal matter required to be transferred to this Court unless a contrary order were made and, in any event, the scales of costs would be parallel if it were litigated in either court.
Secondly, because this was a proceeding under Pt.IV involving an allegation of contravention of s.46 of the Act, there was an element of public interest in the prosecution of the litigation as was made clear in the case of Fencott v. Muller (1983) 152 C.L.R. 570.
The Act has been drawn to provide for the enforcement, or adherence, to its provision by the prosecution of private actions against corporations and parties through which they act. Therefore, it must be kept in mind that an applicant pursues more than a private interest in presenting such an application. Of course, pursuit of the public interest would not justify undue time being spent and costs being incurred unnecessarily and an assessment would still be required of whether excessive time was incurred in presenting the case.
attempt to limit its exposure to an order for costs by making exercising its discretion are that the respondent did not Other factors to be considered by the Court in
a tender or payment into Court and apparently did not initiate any correspondence raising a reasonable offer of settlement. The respondent did participate in an attempt to reduce the costs by agreeing to the tender of a bundle of agreed documents and an agreed statement of facts.
In the end the question to be resolved must be whether, having succeeded on the principal issues, the applicant should be denied costs for some element of time unnecesarily spent in the trial. The applicant's success on the matter of damages is limited and far less than the case it sought to present but the time spent in presentation of that case will only be inordinate if it clearly exceeds the time that would have been spent in presenting a case to recover the amount that was awarded. In my view, the evidence relating to damages was not an area which occupied an extended period.
There was time spent, and profitably spent from the respondent's point of view, on cross-examination but that was work done skilfully and with a minimum of delay. I venture to suggest that had the claim for damages been more limited not much less time would have been spent by the respondent on testing the strength of the claim presented.
I could not be satisfied that excess time was spent in presenting evidence as to damages notwithstanding that the applicant did not succeed to the extent it had sought.
As to the time spent generally, I cannot say from where I sit that undue time was spent by the applicant in elaboration and presentation of its case to the extent that it should be penalized.
I think it was a matter of the applicant presenting material it considered to be germane, that material being tested at length and time continuing to pass.
For those reasons I am of the view that there should be an order under 0.62 r.36A that the rule not apply to reduce the applicant's costs by one third and that the applicant's costs be taxed in the ordinary way.
It is also appropriate that I deal now with the question of reserved costs rather than leaving it to be dealt with by the Rules. There will be an order that the reserved costs be the costs of the applicant, those costs to include costs thrown away.
Therefore, there will be an order in the terms of the minute that judgment be entered for the applicant in the sum of $14,000; that the respondent pay the applicant's costs, to be taxed, including reserved costs and costs thrown away; and an order that 0.62 r.36A not apply to the taxation of those costs.

I certify that the preceding

five (5) pages are a true copy of the

Reasons for Judgment of his Honour M r Justice Lee.

r\

Date:  / 4 <C,&-& L Y ~ O

Counsel for the Applicant: Mr C.G. Colvin

Solicitors for the Applicant: Robinson Cox

Counsel for the Respondent: Mr J.R.C. Gordon

Solicitors for the Respondent: Turner Freeman by their

agents Slater and Gordon

Date of Hearing:  4 September 1990

Date of Judgment: 4 September 1990