Federal Court of Australia

Lopez v Gold Titan Pty Ltd (No 2) [2022] FCAFC 146

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the appellants’ costs of the appeal, as agreed or taxed, save that the amount payable by the respondent to the appellants not include any costs incurred by the appellants referable to the preparation of Part B (except the index) and Part C of the appeal book.

2.    The respondent be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment to the respondent in respect of:

(a)    the costs incurred by the respondent in relation to the appeal; and

(b)    any costs incurred by the appellants in relation to the appeal that are required to be paid by the respondent to the appellant pursuant to Order 1.

3.    The amount of $20,000 paid into Court by the appellants pursuant to the orders made on 2 March 2022 as security for the costs of the appeal be released to the appellants.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    On 12 July 2022, in Lopez v Gold Titan Pty Ltd [2022] FCAFC 117 (Lopez (No 1)), we made orders: upholding the appeal; setting aside the order made by the primary judge on 17 December 2021 that there be judgment for the applicant below/respondent on the appeal against the first and second respondents below/appellants on the appeal in the sum of $150,000 plus interest; remitting the matter to the primary judge for the provision of further reasons on the quantum of damages; reserving the costs of appeal; and providing a timetable for the parties to file and serve evidence and submissions on the question of costs. Those orders preserved to the parties an ability to request an oral hearing on the question of costs, absent which costs were to be determined on the papers.

2    The parties have provided evidence and submissions. Neither party has requested an oral hearing and we have proceeded to determine the question of costs on the papers.

the issues

3    The parties are at issue as to:

(1)    whether the costs of the appeal should be determined now; and

(2)    who should pay the costs of the appeal and in what amount?

4    The respondent also seeks a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act).

the timing of the determination of the costs of the appeal

5    The costs of the appeal should be determined now. The appeal, save for the question of costs, has been finalised. The proceeding has been remitted to the primary judge solely for the purpose of providing further reasons on the quantum of damages: see Lopez (No 1) at [46], [107], [109] and Order 3.

6    The respondent’s submissions, which seek a deferral of the determination of the costs of the appeal until after the primary judge’s further reasons have been delivered on the basis that such a determination now would be premature, start from the premise that some of the grounds of appeal remain to be determined after the primary judge has delivered her further reasons. That premise is false: no grounds of appeal remain to be determined. Whilst only two of the ten grounds of appeal were determined in Lopez (No 1), the remaining grounds were not deferred – it was simply unnecessary to deal with them to determine the appeal: see Lopez (No 1) at [53], [87]-[88] and [108].Thus, and contrary to the respondent’s submissions, there is no possibility of a different award of damages being made on the remittal.

7    The respondent places reliance upon North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; 269 ALR 262 and North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 2) [2011] FCAFC 15 (North East Equity (No 2)), as an example of a Full Court deferring the question of costs until the primary judge had delivered further reasons. Whilst the Full Court in North East Equity chose to defer the question of costs of the appeal until after the primary judge’s further reasons had been published, it provided no reasons for adopting that approach. No doubt it was because in North East Equity the remittal order was not so limited as the one in the present appeal and included an order that the primary judge further consider the question of damages in light of the reasons of the Full Court, with the attendant possibility of a different order as to damages. We see no reason to adopt a similar course in the present case where the remittal is for the limited purpose of the primary judge providing adequate reasons for the award of damages made and thus there is no possibility of a different quantum of damages.

Who should pay the costs of the appeal and in what amount?

8    The starting point is that the appeal was upheld. This is a powerful consideration in favour of an award of costs in favour of the appellants: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at 173 [25].

The remaining eight grounds of appeal

9    The respondent submitted that as the appellants pursued ten grounds of appeal and only two of those grounds were upheld, the appellants should be ordered to pay 80 per cent of the respondent’s costs of the appeal. We disagree. The respondent’s submission proceeds on the false premise that the respondent succeeded and the appellants failed on those remaining grounds, when in truth those grounds were not determined. If that premise had been true, then there may have been a basis for apportionment of costs (as in North East Equity (No 2)), but that is not this case.

Offers of settlement

10    Each of the parties has made offers of settlement in connection with the appeal. We do not consider that any of these offers have any bearing on the question of costs of the appeal in circumstances where the determination on the appeal was that the proceeding should be remitted for the provision of further reasons, and the appeal did not alter the amount of damages awarded.

The preparation of Part C of the appeal book

11    Part C of the appeal book provided by the appellants to the Court and the respondent did not comply with or meet the standards expected of a represented litigant in this Court. In particular:

(1)    contrary to the requirements of, first, r 36.54(c) of the Federal Court Rules 2011 that Part C of the appeal book contain “only the exhibits and evidence to which the parties refer in the parties’ submissions, arranged in the same order as the Comprehensive Reference Index” and, secondly, [6.2] of Practice Note App 2 (25 October 2016) that the “exhibits, affidavits, annexures or transcript must be relevant to the issues on appeal and necessary for the consideration and determination of the issues and arguments raised by the outline of submissions”, the appellants initially included in Part C a hardcopy of what appeared to be all of the documents in Part B comprising all of the exhibits and evidence in eight large lever arch folders;

(2)    different copies of the appeal book including in a revised Part C had different page numbering; and

(3)    the affidavit evidence in the revised Part C was reproduced in a form which did not reflect the rulings on evidence made by the primary judge, with the result that evidence that had been excluded or was the subject of rulings as to the limits of its use was included without annotation.

12    In these circumstances, and having regard to the obligations upon the appellants under s 37N of the Federal Court of Australia Act 1976 (Cth) to conduct the appeal in a way consistent with the overarching purpose in s 37M, namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, it is appropriate that the appellants not recover any costs associated with the production of Part B (except the index) and Part C of the appeal book.

the costs act

13    Section 6 of the Costs Act provides in so far as is presently relevant:

6    Costs certificates for respondents—Federal appeals

(1)    Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

…

(3)    The certificate that may be granted under subsection (1) … by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

(a)    the costs incurred by the respondent in relation to the appeal; and

(b)    any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

14    The appeal, being an appeal from a single judge of this Court to a Full Court of this Court, is a “Federal appeal”, within the definition of that term in s 3 of the Costs Act. The appeal succeeded on a question of law: namely the failure of the primary judge to give sufficient reasons to explain how she arrived at her award of damages. Thus, the preconditions to the exercise of the discretion in s 6 of the Costs Act are satisfied.

15    The principles relevant to the exercise of the discretion were conveniently summarised in Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated (No 2) [2016] FCAFC 137 at [25], where Allsop CJ, Griffiths and Moshinsky JJ explained:

In Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476, Smithers, Sweeney and Woodward JJ said (at 477) that the discretion of the Court under s 6(1) is unfettered once the respondent shows that the grant of a certificate is within the power of the Court, although it must of course be exercised judicially and on proper grounds. Their Honours also said that there is no presumption in favour of the grant of a certificate once the prerequisites are satisfied; the unsuccessful respondent must satisfy the Court that it is appropriate in all the circumstances for a certificate to be granted, and the circumstances which could properly influence that decision are many and various. Their Honours (at 477-478) quoted from the judgment of the Full Court of the Supreme Court of Western Australia in Richards v Faulls Pty Ltd [1971] WAR 129, in which the Full Court said in relation to similar legislation that the power conferred on the Court “is a discretion to grant; it is not a discretion to refuse”. These passages of the judgment in Bullock were cited with approval in Anti-Doping Rule Violation Panel v XZTT (No 2) [2013] FCAFC 135 at [33]-[34] by North, Cowdroy and McKerracher JJ. See also Sims v Chong (No 2) [2015] FCAFC 163 at [7] per Mansfield, Siopis and Rares JJ. A factor which may favour the grant of a certificate is the circumstance that the judgment has wider relevance, beyond the outcome of the particular case: see, eg, Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 at [3]-[4] per Keane CJ, Emmett and Perram JJ.

16    We are satisfied that a costs certificate should be granted to the respondent. The appeal turned on the inadequacy of the reasons of the primary judge, a matter beyond the control of the respondent. Further, the reasoning in Lopez (No 1) concerning the adequacy of reasons has a wider relevance beyond the present case.

CONCLUSION

17    For the reasons set out above, the respondent should pay the appellants’ costs of the appeal, but not including any costs incurred by the appellants referable to the preparation of Part B (except the index) and Part C of the appeal book. The respondent should be granted a costs certificate under s 6 of the Costs Act. Further, the $20,000 which the appellants paid into Court as security for the costs of the appeal should be returned to them.

Associate:    

Dated:    29 August 2022