FEDERAL COURT OF AUSTRALIA

Johnstone v Home Wilkinson & Lowry [2003] FCA 1313

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

RAYMOND MARSHALL JOHNSTONE v HOME WILKINSON AND LOWRY

V 874 of 2003

GRAY J

27 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         By consent, the application be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding on the basis that those
costs include the full amount of all disbursements, unless of unreasonable amount or unreasonably incurred.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     It is clear that this application should be dismissed.  The applicant has conceded this.  The respondent is a firm of solicitors.  The respondent’s counsel has asked me for an unusual order for costs.  He has used the phrase ‘indemnity costs’, but a clarification of his argument makes it clear that that phrase is not really appropriate.  In any event, it would not be appropriate in relation to a firm of solicitors acting for itself in litigation because there exists no normal relationship of solicitor and client, involving the payment of money, against which the client would need to be indemnified. 

2                     Having said that, I am of the view that the circumstances in which the proceeding was brought do warrant some element of compensation for the respondent for incurring out of pocket expenses. 

3                     The form of order proposed by counsel for the respondent is a form of order that would provide indemnity, unless there is involved expenditure of unreasonable amounts, or unless amounts have been unreasonably incurred.  The form of order is taken from Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 – 402. 

4                     In the present case, the respondent ought to be indemnified in respect of all reasonable kinds and amounts of disbursements and in reasonable amounts.  It is appropriate to modify the proposed form of order, to make it clear that the manner in which the respondent’s own calculation of its own time will be taken into account is not to be affected.

5                     The orders I make are as follows:

1.         By consent, the application be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding on the basis that those
costs include the full amount of all disbursements, unless of unreasonable amount or unreasonably incurred.

Associate:

Dated:              14 November 2003