The Adelaide Steamship Co Ltd v Spalvins, Janis Gunars

[1998] FCA 1195

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 65 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE ADELAIDE STEAMSHIP CO LIMITED

AND AUSTRALIAN SECURITIES COMMISSION

Appellants

And

JANIS GUNARS SPALVINS

FIRST RESPONDENT

MICHAEL JAMES KENT

SECOND RESPONDENT

NEIL LESLIE BRANFORD

THIRD RESPONDENT

KENNETH WILLIAM RUSSELL
  FOURTH RESPONDENT

MICHAEL STEVENSON GREGG
  FIFTH RESPONDENT

DELOITTE HASKINS & SELLS
  SIXTH RESPONDENT

DELOITTE ROSS TOHMATSU
  SEVENTH RESPONDENT

JUDGES:  OLNEY, KIEFEL AND FINN JJ

DATE OF ORDER:             21 AUGUST 1998
WHERE MADE:                  BRISBANE
ORDER VARIED:                24 SEPTEMBER 1998
PLACE:  MELBOURNE

THE COURT ORDERS THAT:

1. The appellant pay the costs of the fourth, fifth, sixth and seventh respondents to the appeal.

2. The respondents to the appeal other than the sixth and seventh respondents pay the appellants’ costs of the hearing on the subpoenae below.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 65 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE ADELAIDE STEAMSHIP CO LIMITED

AND AUSTRALIAN SECURITIES COMMISSION

Appellants

And

JANIS GUNARS SPALVINS

FIRST RESPONDENT

MICHAEL JAMES KENT

SECOND RESPONDENT

NEIL LESLIE BRANFORD

THIRD RESPONDENT

KENNETH WILLIAM RUSSELL
  FOURTH RESPONDENT

MICHAEL STEVENSON GREGG
  FIFTH RESPONDENT

DELOITTE HASKINS & SELLS
  SIXTH RESPONDENT

DELOITTE ROSS TOHMATSU
  SEVENTH RESPONDENT

JUDGES:                  OLNEY, KIEFEL AND FINN JJ
DATE:   24  SEPTEMBER 1998
PLACE:  MELBOURNE

SUPPLEMENTARY REASONS FOR JUDGMENT – COSTS

In the Court’s reasons for judgment relating to costs published on 21 August 1998 the observation is made in the penultimate paragraph that the sixth and seventh respondents were made parties to the appeal although no orders were sought against them and it was on that basis that the Court declined to make an order for costs against those respondents in relation to the appeal.

In dealing with the question of the costs of the hearing before the primary Judge, which his Honour had reserved, the Court overlooked the fact that the sixth and seventh respondents had not issued any subpoenae, a fact which was brought to the Court’s attention in the written submissions on costs made by the solicitors acting for the sixth and seventh respondents.   

It is the Court’s opinion that had it addressed the question of the passive role of the sixth and seventh respondents in the hearing before the primary Judge it would have excluded the sixth and seventh respondents from liability to pay the costs of that hearing.   The Court’s oversight, which was in no way attributable to the sixth and seventh respondents, now having been drawn to the Court’s attention and in circumstances where the order made on 21 August 1998 has not yet been entered, it is appropriate that the Court exercise its power pursuant to Order 35 rule 7(1) of the Federal Court Rules to vary paragraph 2 of its order to reflect the order that would have been made had the full facts been addressed.

The order made on 21 August 1998 is varied by substituting for paragraph 2 thereof the following new paragraph:

2.The respondents to the appeal other than the sixth and seventh respondents pay the appellants’ costs of the hearing on the subpoenae below.

I certify that this and the preceding

Page is a true copy of the Reasons

For Judgment herein of the

Honourable Justices Olney, Kiefel,

and Finn JJ

Associate:

Dated:

Counsel for the Appellants:                  Mr T. Gray QC with him

Mr Whitington QC and Mr Blue

Solicitor for the Appellants:                  Australian Securities Commission

Counsel for the First  Mr D. Bennett QC and Mr White

Respondent:

Solicitor for the First  Thomson Playford

Respondent:

Counsel for the Second and                 Mr A. Besanko QC

Third Respondents

Solicitor for the Second and                 Finlaysons

Third Respondents:

Counsel for the Fourth and Fifth           Mr J. Allsop SC

Respondents:

Solicitor for the Fourth and Fifth           Phillips Fox

Respondents:

Counsel for the Sixth and  Mr D. Robertson

Seventh Respondents:

Solicitor for the Sixth and  Mallesons Stephen Jaques

Seventh Respondents:

Date of Hearing:  10 November 1998

Date of Judgment  24 September 1998