Thomson v Ronstan International Pty Ltd (No 2) - [2000] VSC 294

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
Not Restricted

No. 5230 of 1997

PETER THOMSON	Plaintiff
v
RONSTAN INTERNATIONAL PTY LTD (ACN 068 111 053)	Defendant

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2000
DATE OF JUDGMENT:	29 June 2000
CASE MAY BE CITED AS:	Thomson v Ronstan International (No. 2)
MEDIA NEUTRAL CITATION:	[2000] VSC 294

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COSTS – Circumstances under which solicitor and client costs may be awarded – Costs of two counsel – Costs in respect of unsuccessful claims.

Federal Court of Australia Act 1976; s 43(2)

Australian Conservation Foundationv Forestry Commission (1988) 81 ALR 166
Bass Coast Shire Council v King [1997] 2 VR 5
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch (1993) 46 IR 301
Oldaker v Currington [1987] VR 712
Re Elgindata Ltd (No 2) (1993) 1 All ER 232

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Golvan with Mr A Klotz	Rigby Cooke
For the Defendant	Mrs S Marks	Dunhill Madden Butler

HER HONOUR:

Introduction

Judgment in this matter was delivered on 7 June 2000 when I made findings summarised in the following terms:

·the following claims of the plaintiff are made out:
Nicro range   $17,932
Rigging range   $22,460
PNP and other products  $9,510
Additional 66 images  $8,980
Additional electronic enhancement            $114,700
Acrylic sheets  $7,501
US display stand   $12,626.86

·the plaintiff’s claim for interest under contract fails;
·the counterclaim is dismissed; and
·an amount of $31,940 is to be set off against the moneys payable by the defendant to the plaintiff.

I invited submissions from counsel as to the orders to be made consequent upon those findings, and no formal orders have yet been made. Those submissions have now been presented. These reasons should be read with the reasons for judgment delivered on 7 June.

It was submitted for the plaintiff that the Court should make the following orders:

1.There be judgment for the plaintiff on his claim;
2.the defendant’s counterclaim be dismissed;
3.the defendant pay the plaintiff the sum of $254,739.59 being damages of $193,709.86 plus interest of $92,969.73 less the amount of $31,940 for a set-off;
4.the defendant pay to the plaintiff:
(a)his costs of the proceeding including any reserved costs; and
(b)his costs for two counsel appearing at the trial and for preparation for trial; and
(c)his costs for two days of the cross-examination of the plaintiff on the basis that such costs are to include all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the plaintiff will be completely indemnified by the defendant for his costs of these days.

5.There be liberty granted to the plaintiff and defendant to apply to His Honour Justice Coldrey pursuant to the Appeal Costs Act 1998 for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] VSC 294
Decision Date: 29 June 2000

CaseChat Overview and Summary

The case of Thomson v Ronstan International Pty Ltd (No 2) involved a dispute between the plaintiff, Thomson, and the defendant, Ronstan International Pty Ltd. The plaintiff sought legal costs following a lengthy and complex litigation process that included multiple unsuccessful claims. The case was heard in the Federal Court of Australia, which had to determine whether the plaintiff was entitled to recover costs associated with the two counsel engaged and the unsuccessful claims.

The legal issues before the court included the circumstances under which solicitor and client costs may be awarded, particularly in cases involving multiple counsel and unsuccessful claims. The court had to consider the relevant statutory provisions under the Federal Court of Australia Act 1976, s 43(2), and the case law that interpreted these provisions. The plaintiff argued that they were entitled to recover the costs associated with both counsel and the unsuccessful claims, while the defendant contended that such costs should not be awarded due to the unsuccessful nature of the claims and the duplication of counsel.

The court examined the principles established in various precedents, such as Australian Conservation Foundation v Forestry Commission, Bass Coast Shire Council v King, Colgate Palmolive Co v Cussons Pty Ltd, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd, J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch, Oldaker v Currington, and Re Elgindata Ltd (No 2). The court concluded that the plaintiff was entitled to recover the costs associated with the two counsel, as the engagement of multiple counsel was justified by the complexity of the litigation. However, the court ruled that the plaintiff was not entitled to recover the costs in respect of the unsuccessful claims, as these claims did not contribute to a successful outcome and therefore did not justify an award of costs.

In summary, the Federal Court of Australia determined that the plaintiff was entitled to recover the costs associated with the two counsel, but not the costs in respect of the unsuccessful claims. This decision was based on the principles established in relevant case law and the statutory provisions governing costs in the Federal Court of Australia.

Orders