Thompson v Department of Environment and Conservation (No 2)

The case of Thompson v Department of Environment and Conservation (No 2) involved a dispute over the assessment of gross costs under Federal Court Rules O 62 r 4(2)(c). The parties involved were Thompson, the Department of Environment and Conservation, National Australia Bank (NAB), and receivers. The dispute centred on the principles applicable to the fixing of a gross sum of costs and whether a discount should be applied to the costs incurred by NAB and the receivers. NAB and the receivers had submitted a bill of costs and disbursements amounting to $127,979.80, but the court was required to determine an appropriate gross sum.

The court considered various factors in deciding the appropriate discount, including the measure of success achieved by NAB and the receivers on their application, the nature of the work done by their representatives, and the relevance of breach of confidence issues. The court noted that while NAB and the receivers were not successful in their application for a permanent stay or dismissal, they had achieved a measure of success by having certain pleadings found to be defective. The court also found that the work done by NAB and the receivers' solicitors and counsel was justified given the complexity of the issues and the previous litigation history.

The court ultimately decided that a discount of 33.5% was appropriate for both sets of costs. This discount, the court held, was generous and addressed the concerns raised by the applicants. The court fixed the gross sum costs at $45,000 for one party and $85,319.87 for the other, and ruled that no further order for costs would be made regarding the determination of gross costs, with each party to bear their own costs in that respect.