Wagdy Hanna and Associates Pty Ltd v National Library of Australia

Wagdy Hanna and Associates Pty Ltd (the appellant) appealed to the Full Court of the Federal Court of Australia against an order that it pay the National Library of Australia's (the respondent) costs of the appeal. The dispute between the parties had a lengthy history, with litigation commencing in the 1990s. The appeal concerned the respondent's refusal to agree to the appellant's proposal for a staged determination of issues on appeal.

The Full Court was required to determine whether the respondent had acted unreasonably in seeking finality in the litigation, and whether the appellant's assertion that it was unaware the appeal lacked merit, given the involvement of eminent local lawyers at first instance, had any bearing on the costs order. The court also considered whether the appellant's involvement in the appeal, despite no lawyers appearing, could lead to an inference that the appeal was reasonably arguable.

The court reasoned that the respondent was not unreasonable in seeking finality, particularly given the protracted nature of the litigation. It found that a staged determination of issues on appeal was highly unusual and that the appellant's argument regarding the involvement of lawyers at first instance did not establish that the appeal itself was reasonably arguable. The court concluded there was no basis to order the lawyers involved at first instance to pay the costs of the appeal. Consequently, the court confirmed the order that the appellant pay the respondent's costs on an indemnity basis.