Vasram v AMP Life Ltd

Case [2002] FCA 1286

FEDERAL COURT OF AUSTRALIA

Vasram v AMP Life Limited [2002] FCA 1286

COSTS – indemnity costs – factors to be taken into account in the award of indemnity costs – whether history of matter disclosed special or unusual features so as to warrant award of indemnity costs for whole or part of proceedings – applicant previously given leave to file fifth amended statement of claim – statement of claim sought to reagitate issues previously decided – statement of claim struck out and proceedings dismissed – whether respondent should have had to incur costs of responding to fifth statement of claim – whether applicant’s solicitor should bear part of award of indemnity costs – circumstances in which appropriate to make costs order against applicant’s solicitor

Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules  O 62

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 referred to
Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685 referred to
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77 referred to
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 referred to
Knight v FP Special Assets Limited (1992) 174 CLR 178 referred to
De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 referred to
Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 applied
Levick v Commissioner of Taxation (2000) 102 FCR 155 applied
Re Bendeich (No 2) (1994) 53 FCR 422 applied
Assaf v Skalkos [2000] NSWSC 935 distinguished
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 referred to
Waiviata Pty Ltd v New Millenium Publications Pty Ltd [2002] FCA 481 referred to
Hamod v State of New South Wales [2002] FCAFC 97 referred to
Calderbank v Calderbank [1975] 3 All ER 333 referred to
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 referred to
Australian Competition & Consumer Commission v Universal Music Australia Pty Limited (No 2) [2002] FCA 192 applied
McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 referred to
Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 163 referred to
John S Hayes & Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) 52 FCR 201 referred to

CHIMAN LAL VASRAM v AMP LIFE LIMITED

NG 667 OF 1998

STONE J
21 OCTOBER 2002
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 667 OF 1998

BETWEEN:

CHIMAN LAL VASRAM
APPLICANT

AND:

AMP LIFE LIMITED
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

21 OCTOBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Subject to previous costs orders, the applicant pay the respondent’s costs in this proceeding assessed on a party and party basis;

2.The applicant’s solicitor pay the difference between the respondent’s costs from 8 October 2001 assessed on a party and party basis and the amount of those…

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AGLC
Vasram v AMP Life Ltd [2002] FCA 1286
Case
[2002] FCA 1286
Decision Date

CaseChat Overview and Summary

In the case of Vasram v AMP Life Ltd, the applicant sought to have the orders regarding costs previously made in the proceeding stand, arguing against revisiting them. The applicant also contended that there were no unusual or peculiar aspects in the matter that would justify an indemnity costs order. The respondent's amended notice of motion requested that any costs order against the applicant be made on a party and party basis, to which the applicant consented for the costs of the motion. The applicant further argued that no costs should be ordered against their solicitor.

The court, considering the history of the case and the applicant's persistence despite clear indications of lack of success, determined that there were special or unusual features warranting an indemnity costs order for part of the proceedings. The applicant was given multiple opportunities to properly plead and amend the statement of claim, but ultimately failed to do so, leading to the court finding the fifth statement of claim to be an abuse of process. The court ordered that the applicant pay the respondent's costs in the proceeding on a party and party basis, with the applicant's solicitor paying the difference between the party and party costs and the indemnity costs from 8 October 2001.

This decision underscores the importance of adhering to court orders and properly pleading claims, as the applicant's repeated failure to do so resulted in significant costs being awarded against them. The court's ruling highlights the need for parties to respect the judicial process and refrain from unnecessary delays and abuse of court procedures.

Orders

Orders of the court

1. Subject to previous costs orders, the applicant pay the respondent’s costs in this proceeding assessed on a party and party basis;

2. The applicant’s solicitor pay the difference between the respondent’s costs from 8 October 2001 assessed on a party and party basis and the amount of those costs assessed on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STONE J
In his written submissions the applicant submits that the orders as to costs previously made in the proceeding should stand and should not be revisited. The applicant also submits that, “there is nothing unusual or peculiar in relation to this matter which would warrant payment of costs on an indemnity basis.” With respect to the respondent’s amended notice of motion, the applicant submits that any costs order made against the applicant ought to be made on a party and party basis. The applicant goes so far as to say that he consents to paying the respondent’s costs of the motion on this basis. In his written submissions it is further submitted that no costs should be ordered against the applicant’s solicitor. DECISION As previously noted, the respondent already has the benefit of a number of costs orders in this matter. Pursuant to O 62, such costs are party and party costs. I am not minded to grant the respondent an order for indemnity costs for the entirety of these proceedings. I am not persuaded that the history of this matter, woeful though it may be, discloses such special or unusual features as to warrant such an order for the whole of the proceedings. If that had been the case one might have expected the respondent to seek indemnity costs in relation to the interlocutory issues at the relevant time. No such requests were made. However, in my opinion, there are special or unusual features that warrant an indemnity costs order for at least part of the proceedings. One might have thought that from 22 December 2000, the date of the second judgment (see [2] above), the applicant properly advised, should have known that he had no chance of success in the proceedings. Nevertheless he persisted with his claim and was given the benefit of the doubt and allowed to replead. In my reasons for dismissing the proceeding I made the following comment (at [5]): “On 24 September 2001, in giving leave to the applicant to amend his pleadings I said that it was my impression that much of the delay in this matter stemmed from the applicant’s lack of clear vision of what he was trying to achieve. Because of those delays and because there had already been four attempts to finalise the pleadings, I put the applicant on notice that I would give sympathetic consideration to any motion by the respondent to strike out the statement of claim if it was not properly pleaded.” Despite the warning, the fifth statement of claim prompted me to make these comments:“The fifth statement of claim indicates that my lack of confidence as to the utility of further amendments to the statement of claim … was well-founded. A brief comparison between the fourth and fifth statements of claim should assist in understanding the scope of the difficulty. The fourth statement of claim consisted of twenty nine paragraphs of which seventeen were rendered obsolete as a result of my orders of 22 December 2000. In addition a number of the remaining twelve paragraphs required amendment for the same reason. Quite apart from these consequences, the statement was noticeably lacking in particulars and suffered from the defects to which I earlier referred; ….The fifth statement of claim was considerably expanded. It consists of forty-six paragraphs of which twenty deal solely with issues that have already been decided. For example, paragraphs 30 – 46 seek to reinstate the proceeding as a representative proceeding despite my express order of 22 December 2000 …. Paragraphs 15 – 17 raise issues relating to the terms of the applicant’s insurance policy with the respondent that have already been decided. Paragraphs 2 – 10 consist of entirely new material. Most of the remaining paragraphs also contain some new material and/or claims that have already been decided.It is totally unacceptable for the applicant to seek to reagitate issues determined adversely to him in my judgments of 21 November and 22 December 2000. If the applicant wished to challenge decisions already made the appropriate course would have been to seek to appeal from my orders. Such appeal would, of course, have required leave and, at this late stage, would also require an extension of time.…The fifth statement of claim does nothing to clarify the issues between the parties. It goes well beyond the scope and purpose of the leave to amend that I gave on 24 September 2001. It contains much irrelevant material. It does not identify the causes of action on which the applicant relies and it completely fails to particularise the applicant’s claims. It would be virtually impossible for the respondent to put on a comprehensible defence to this pleading. It is embarrassing in the extreme and, in my opinion, it is an abuse of the process of the Court. It should be struck out in its entirety.”

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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