FEDERAL COURT OF AUSTRALIA

Guglielmin v Trescowthick (No.4) [2005] FCA 140

ELEANOR GUGLIELMIN v ADAM JOHN TRESCOWTHICK, JOHN MAURICE PATTEN, ROSS GRAHAM OAKLEY, ROBERT DAVID MATTINGLY, ROGER ANDREW CURTIS & MARK CHARLES TRESCOWTHICK

SAD 153 of 2002

MANSFIELD J

25 FEBRUARY 2005

ADELAIDE

THE COURT ORDERS THAT:

1.           The costs of and incidental to the first respondent’s notice of motion dated 10 October 2002 and filed on 16 October 2002 be costs in the cause.

2.           The costs of and incidental to the second to fifth respondents’ notice of motion dated 15 October 2002 and filed on 17 October 2002 be costs in the cause.

3.           The costs of and incidental to the sixth respondent’s notice of motion dated 14 October 2002 and filed on 21 October 2002 be costs in the cause.

REASONS FOR JUDGMENT

1                     On 25 March 2004 I gave judgment on the separate notices of motion of the first, second to fifth, and sixth respondents seeking to strike out the statement of claim filed on 7 June 2002:  Guglielman v Trescowthick [2004] FCA 326 (the judgment).  (The applicant’s name was spelled that way in error in certain documents, and has now been corrected to Guglielmin.)  The costs of those motions are yet to be resolved.

2                     The first and sixth respondents seek the costs of their respective motions against the applicant.  The second to fifth respondents contend that the costs of their motion should be costs in the cause.  The applicant seeks costs of the respective motions.  The issues on the motions were addressed through extensive oral and written submissions.  The outcome of the motions was that by orders of 29 April 2004 a number of paragraphs of the then statement of claim were struck out, and the applicant was given leave to amend the statement of claim in a number of respects.  Certain of those amendments were proposed by senior counsel for the applicant in the course of submissions, in effect to respond to or accommodate certain concerns of the respondents as expressed in their submissions.  On 18 May 2004 an amended statement of claim was filed to give effect to those orders.

3                     In approaching the respective claims for costs, I have had regard to the guidance provided by Toohey J in Hughes v Western Australian Cricket Association Inc. (1986) ATPR 40-748 at 48, 136.  The real debate between the parties was as to the extent to which they had been successful.

4                     I do not consider that the applicant should recover fully the costs of the motions.  Although she succeeded in resisting orders that the statement of claim should be struck out, that was in the context of the applicant indicating that there were a number of respects in which the statement of claim was sought to be amended.  There were further amendments proposed during the course of submissions and in the light of the submissions of the respondents.  The judgment also required a number of amendments to the statement of claim.  Prior to those proposed amendments being signified, the first respondent had written to the applicant’s solicitors identifying the respects in which the statement of claim was said to have been defective, and inviting the applicant to amend the statement of claim.  Initially, she declined to do so.  The second to fifth respondents, and the sixth respondent, through their respective solicitors also wrote to the applicant’s solicitors pointing out asserted deficiencies in the statement of claim.  The response in each case did not address those deficiencies.  Consequently, although the judgment rejected many of the concerns of the respondents, they were entitled to pursue their motions to secure a statement of claim which properly and effectively served the proper purpose of a pleading:  Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.

5                     On the other hand, the respondents did not succeed in having the statement of claim struck out.  The majority of their contentions about inadequacies in the statement of claim were rejected.  The parts of the statement of claim which required significant modification were relatively few.  Whilst the respondents may have been justified in seeking to strike out certain parts of the statement of claim, their contentions ranged much wider and were largely unsuccessful.  The amendments to the statement of claim foreshadowed by the applicant prior to the hearing were not accepted as adequate (although the judgment concluded that they were adequate on the matters which they addressed), and the respondents persisted in attacking certain parts of the statement of claim as if they had been amended as foreshadowed.  I do not consider any respondents should have their full costs of the motions.

6                     I am reluctant to make an order for costs which involves the applicant recovering the costs of certain issues argued, and the respondents recovering the costs of other issues argued.  That may place an intolerable burden on a taxing officer.  It is also not an efficient process. Whilst the respondents were, in my view, justified in bringing their respective motions for the reasons given, they were then largely unsuccessful on the matters they argued.  However, they did succeed in obtaining orders requiring some amendments to the statement of claim, and the applicant’s own proposed amendments emerged only close to or during the hearing of the motions.  Having regard to those considerations, I have reached the conclusion that the appropriate order is that, on each motion, the costs should be costs in the cause.  That order represents a balancing of the pros and cons put forward by the parties as to how the costs of each motion should be ordered.

7                     Accordingly, I order that the costs of and incidental to the following notices of motion be costs in the cause:

(a)                the first respondent’s notice of motion dated 10 October 2002 and filed on 16 October 2002

(b)               the second to fifth respondents’ notice of motion dated 15 October 2002 and filed on 17 October 2002;

(c)                the sixth respondent’s notice of motion dated 14 October 2002 and filed on 21 October 2002.

Associate:

Dated:              25 February 2005