CATCHWORDS
PRACTICE and PROCEDURE - costs - application by successful respondents to appeal against interlocutory order for an order that their costs of the appeal be paid forthwith - principal proceedings not expected to be finally resolved for a substantial period of time - whether order should be made that costs be paid forthwith - leave to tax costs forthwith - no question of principle.
Federal Court Rules O 62 r 3.
ALLSTATE LIFE INSURANCE CO & ORS v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED & ORS (No 13)
No NG 381 of 1994
Lockhart, Lindgren and Tamberlin JJ
Sydney
17 August 1995
IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) No NG 381 of 1994
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
ALLSTATE LIFE INSURANCE CO & ORS
Appellants
AND:
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED & ORS
Respondents
CORAM: Lockhart, Lindgren and Tamberlin JJ
PLACE: Sydney
DATE: 17 August 1995
MINUTE OF ORDERS
THE COURT:
1. ORDERS that the respondents to the appeals have leave to tax the costs the subject of the order of this Court on 11 July 1995 forthwith.
2. ORDERS that the costs the subject of the order of this Court on 11 July 1995 be paid forthwith.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) No NG 381 of 1994
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
ALLSTATE LIFE INSURANCE CO & ORS
Appellants
AND:
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED & ORS
Respondents
CORAM: Lockhart, Lindgren and Tamberlin JJ
PLACE: Sydney
DATE: 17 August 1995
REASONS FOR JUDGMENT (No 13)
THE COURT:
The Court delivered judgment in this matter on 11 July 1995 when it dismissed the appeals from the judgments of Beaumont J of 10 February 1995 and 21 March 1995 and ordered that the appellants pay the respondents' costs of the appeals.
The respondents to the appeals seek orders pursuant to O 62 r 3 (2) and (3) of the Federal Court Rules that such costs be taxed and paid forthwith notwithstanding that the principal proceeding has not concluded.
The appeals dealt with the discrete question of whether or not
the appellants had alleged all of the elements necessary to establish a claim
of tortious inducement of breach of contract.
The learned primary Judge held that it was necessary that the appellants
allege that the respondents knew or intended that their conduct would cause a
breach of contract, but the appellants were not prepared to make that
allegation, with the result that the relevant part of their pleading was struck
out. For practical purposes the result
of the dismissal by this Full Court of the appeals against the primary Judge's
judgments is that the particular allegation of tortious inducement of breach of
contract has ceased to be an issue in the case.
The proceeding has been set down for hearing commencing on 18 March 1996 and unless settled may subsist for a substantial time. The litigation is complex. It is unlikely that final judgment will be given until late 1996 or even later. The successful parties to the appeals before this Court will therefore, in the ordinary course of events, not recover their costs for a long time.
It would be wrong if the successful parties do not enjoy the fruits of their order for costs for such a long time. The parties entitled to the benefit of the order for costs which this Court has made in appeals from interlocutory orders should not be deprived of that benefit until the case has been finally disposed of.
In all the circumstances in our opinion the order for costs made by this Court on 11 July 1995 should be made on the basis that the costs are taxed and paid forthwith notwithstanding that the principal proceeding has not concluded.
Accordingly, the Court orders that the costs the subject of the order of this Court on 11 July 1995 be paid forthwith and that the respondents to the appeals have leave to tax such costs forthwith.
I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 17 August 1995.
Heard: 11 July 1995
Place: Sydney
Decision: 17 August 1995
Appearances: Mr W G Muddle and Mr D R Stack of counsel instructed by Sly & Weigall appeared for the appellants.
Mr J W J Stevenson of counsel instructed by Middletons Moore & Bevins appeared for the 10th respondent.
Mr P Santamaria of counsel instructed by Arthur Robinson & Hedderwicks appeared for the 14th to 28th respondents.
