Windsor v National Mutual Life Association of Australia Limited

[1992] FCA 1101

IN THE FEDERAL COURT OF AUSTRALIA

VICTORI A DISTRICT REGISTRY	No. VG3007 of 1991
GENERAL DIVISION

BETWEEN:

PETER GRENFELL WINDSOR

Appellant

AND:

THE	NATIONAL	MUTUAL
LIFE	ASSOCIATION	OF

AUSTRALIA LIMITED

Respondent

THE	NATIONAL	MUTUAL
LIFE	ASSOCIATION	OF

AUSTRALIA LIMITED

Cross-appellant

PETER GRENFELL WINDSOR

Cross-respondent

CORAM:	BLACK C. J., BEAUMONT AND RYAN JJ.
PLACE:	MELBOURNE
Note:	Settlement and entry of orders is dealt
with in Order 36 of the Federal Court
Rules .

MINUTES OF ORDER

THE COURT ORDERS:

The appellant pay the respondent's costs of the

appeal and that the cross-appellant pay · the cross-

respondent's costs of the cross appeal.

IN THE FEDERAL COURT OF .AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) No. VG3007 of 1991
)
GENERAL DIVISION	)

BETWEEN:

PETER GRENFELL WINDSOR

Appellant

AND:

THE	NATIONAL	MUTUAL
LIFE	ASSOCIATION	OF

AUSTRALIA LIMITED

Respondent

THE	NATIONAL	MUTUAL
LIFE	ASSOCIATION	OF

AUSTRALIA LIMITED

Cross - appellant

PETER GRENFELL WINDSOR

Cross-respondent

CORAM:  BLACK C . J., BEAUMONT AND RYAN JJ.

REASONS FOR JUDGMENT

(on reserved costs)

THE COURT:

When the appeal and cross-appeal in this matter were

dismissed, costs of the appeal and of the cross-appeal were reserved. The parties were given leave to file written

submissions. The parties have now filed written submissions.

At first instance, on the question of costs , Heerey

J. said ((1991) 100 ALR 585 at 599):

"Costs

I accept what Mr Finkelstein [senior ···counsel for National Mutual] says as to the lack of any suggestion of improper conduct on behalf of his

client. No such suggestion is made or could be

made. I accept, of course, that ordinarily the

successful party recovers his costs.

Nevertheless, there are some unusual features of this case. While I have found that the applicant's

legal submissions are valid, the case has not been

without difficulty and there is to my mind a public

interest element, having regard to the very large

number of members of this company, more in number

than one or two of the Australian States. The question of the kind of notice of general meetings members are entitled to get does involve a matter of public interest and takes this case outside the usual run of cases.

In all the circumstances, I propose to make no order as to costs."

National Mutual cross-appealed against this part of the judgment, but abandoned the cross-appeal during the course of argument.

Mr. Windsor now submits that there should be no

order as to costs.

In his written submission, Mr. Windsor relies on

considerations of a kind similar to the matters referred to by

Heerey J. In addition, Mr. Windsor points to the circumstance

that National Mutual abandoned its cross-appeal.

National Mutual contends that costs of the appeal

and cross-appeal should follow the event, in the usual way.

In our opinion, so far as the cross-appeal is concerned, there is no reason why costs should not follow the event .

With regard to the costs of the appeal, whilst we

can see, with respect, the force of the approach taken by

Heerey J. at first instance , we do not think that it is

appropriate that this reasoning should again be applied at the appellate stage. Whatever the outcome in terms of costs at first instance, the appeal was prosecuted by the appellant at

his own risk as to costs. We are not persuaded that we should

depart from the rule that the dismissal of an appeal ordinarily carries with it an order that the unsuccessful appellant bear the costs of the appeal.

We propose to order that the appellant pay the respondent's costs of the appeal and that the cross-appellant

pay the cross-respondent's costs of the cross-appeal.

I hereby certify that this	and
the preceding two (2) pages	are
a true copy of the Reasons	for
Judgment of the Court.
Associate ~
Dated: