Woodside Energy Ltd v Zaghloul (No 2)

[2015] FCAFC 143

FEDERAL COURT OF AUSTRALIA

Woodside Energy Ltd v Zaghloul (No 2) [2015] FCAFC 143

Citation:	Woodside Energy Ltd v Zaghloul (No 2) [2015] FCAFC 143
Appeal from:	Zaghloul v Woodside Energy Ltd (No 5) [2014] FCA 1042
Parties:	WOODSIDE ENERGY LTD (ACN 005 482 986) v DR HASSAN ZAGHLOUL
File number:	WAD 310 of 2014
Judges:	SIOPIS, RARES AND MCKERRACHER JJ
Date of judgment:	9 October 2015
Catchwords:	COSTS – whether unsuccessful appellant should have costs on respondent’s abandoned arguments
Cases cited:	Woodside Energy Ltd v Zaghloul [2015] FCAFC 135
Date of hearing:	Determined on the papers
Date of last submissions:	30 September  2015
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Appellant:	Mr J Blackburn
Solicitor for the Appellant:	Ashurst Australia
Counsel for the Respondent:	Dr J Cameron (Pro Bono)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 310 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WOODSIDE ENERGY LTD (ACN 005 482 986) Appellant
AND:	DR HASSAN ZAGHLOUL Respondent

JUDGES:	SIOPIS, RARES AND MCKERRACHER JJ
DATE OF ORDER:	9 OCTOBER 2015
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Order 2 made on 16 September 2015 be varied by adding at the end thereof:

“other than the appellant's costs, fixed in total in the sum of $4,000, of and incidental to the notices of objection to competency filed on 3 and 4 December 2014, the notice of contention filed on 10 December 2014, the amended notice of contention filed on 6 February 2015, the arguments abandoned by the respondent prior to and at the hearing of the appeal and the appellant’s application for special costs orders.”

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 310 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WOODSIDE ENERGY LTD (ACN 005 482 986) Appellant
AND:	DR HASSAN ZAGHLOUL Respondent

JUDGES:	SIOPIS, RARES AND MCKERRACHER JJ
DATE:	9 OCTOBER 2015
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1. By judgment of the Court in Woodside Energy Ltd v Zaghloul [2015] FCAFC 135, the appeal was dismissed and Woodside was ordered to pay Dr Zaghloul’s costs.

2. When those orders there made, Woodside sought a special costs order for costs thrown away in this appeal as a result of having to address, consider and respond to various notices and arguments raised by Dr Zaghloul both when he acted in person prior to his pro bono representation being provided by Dr Cameron of counsel and after Dr Cameron began to act. 

3. The order Woodside seeks is:

   The respondent pay the appellant’s costs of and incidental to the notices of objection to competency filed on 3 and 4 December 2014, the notice of contention filed on 10 December 2014, the amended notice of attention filed on 6 February 2015, the arguments abandoned by the respondent to the hearing of the appeal and the application for special costs orders.

4. The arguments raised by Dr Zaghloul were manifestly without merit and almost entirely abandoned by counsel before or at the hearing of the appeal. 

5. It should have been obvious to Woodside that there was nothing in the points raised.  Woodside’s suggestion that there was over $21,700 worth of time incurred between solicitors and counsel in considering those matters is somewhat difficult to understand. 

6. Woodside is entitled to some compensation for considering the arguments continually thrown up by Dr Zaghloul and while the amount claimed appears on its face to be disproportionate on a party and party basis, it is equally inappropriate for Dr Zaghloul to expect that a represented party, which is obviously paying for that legal representation to be required to meet its own costs for considering every unwarranted and, in some cases, unfathomable argument presented. 

7. The schedule of costs annexed by affidavit tendered by Woodside was clearly based on a solicitor/client basis.  The total in it is far too much to award against an individual who was otherwise successful on the main point on the appeal. 

8. We would make an order substantially as sought by Woodside but by adding the qualification, “fixed in total in the sum of $4000”. 

9. The second order made on 16 September 2015 remains appropriate, namely, that Woodside pay Dr Zaghloul’s costs of the appeal, but this should be qualified as follows to reflect our assessment of the costs that Woodside is entitled to recover as follows:

   1.Order 2 made on 16 September 2015 be varied by adding at the end thereof:

   “other than the appellant’s costs, fixed in total in the sum of $4,000, of and incidental to the notices of objection to competency filed on 3 and 4 December 2014, the notice of contention filed on 10 December 2014, the amended notice of attention filed on 6 February 2015, the arguments abandoned by the respondent prior to and at the hearing of the appeal and the appellant’s application for special costs orders.”

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Rares and McKerracher.

A/Associate: 

Dated:       9 October 2015