FEDERAL COURT OF AUSTRALIA

Brown v Rodgers, in the matter of Terry Donald Hill

[2006] FCA 713

COSTS – where leave to amend interim application granted – prejudice to party – whether costs should be quantified – order sought for taxation or fixing of costs

Held - application refused

IN THE MATTER OF TERRY DONALD HILL

DONALD EDWARD BROWN AND ORS v PETER RODGERS AND ANOR

NSD 1822 OF 2005

RARES J

15 MARCH 2006

SYDNEY

THE COURT ORDERS THAT:

1.         The applicants pay the respondents’ costs:

            (a)        thrown away by the amendment to the application foreshadowed today;

            (b)        of 15 March 2006 in any event.

2.         The respondents’ application to fix a sum or to require the taxation of those costs at this stage is refused.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     The applicants yesterday raised a point which arose in the course of cross-examination towards the end of the afternoon.  Mr Hill, the second respondent, was being cross-examined about one view of a method in which he was doing business in the past involving the question of whether he or one of the companies with which he was associated was a licensee for the purposes of s 154A of the Liquor Act 1982 (NSW).

2                     Mr Aldridge SC, who appears with Mr Glasson for the respondents, objected that the matter raised in cross-examination was developing a new case that had not been foreshadowed.  Mr Allen, who appears for the applicants, conceded that it was a new case, but said that it arose in circumstances where he had revisited, the night before, s 154A and had seen, in the morning of the hearing yesterday, the respondents’ written submissions, which explained their perception of the operation of s 154A.

3                     This necessitated a situation in which Mr Allen has now sought leave to amend the application by, inter alia, adding three new applicants, and to reassess the applicants’ claim that Mr Hill had become a debtor to them by force of s 154A.

4                     The parties have agreed a timetable for the preparation of further evidence, and I have asked them informally to exchange points of claim and points of defence so that the issues will clarify for the further hearing to be held in June.

5                     The solicitor for the respondents, Mr Doble, has prepared an affidavit today setting out the basis upon which it is sought to have me make an assessment of costs thrown away by the adjournment of the hearing which has been necessitated by the circumstances I have just described.

6                     There is no doubt that there is some injustice to the respondents by their having to pay costs such as the costs of today and costs associated with preparing once again for the hearing by covering some of the older ground that had been covered in preparing for the hearing yesterday and today.  I have to balance that injustice against the possibility that the respondents may be unsuccessful at the end of the hearing.  Then there will be issues as to costs for both sides.

7                     I have expressed, in the course of argument, a diffidence about granting an order for costs in an amount I assess in circumstances where the further evidence that is to be filed is not at this stage known and the precise way or ways in which the respondents have been adversely affected in a pecuniary way cannot be quantified with, in my opinion, a sufficient amount of certainty that it would be just for me to order the immediate payment of the money to them.

8                     The proceedings between the parties apart from the first respondent have been, the evidence reveals, hard fought, complex and lengthy.  The matter currently before me bears the hallmarks of a continuation of that process in the sense that there is obviously a concern on each side to pursue vigorously what is perceived to be its or their legal rights.

9                     The question of whether I should make an order for costs and in what way I should make it is obviously one which is discretionary.  Mr Allen, on behalf of the applicants, cannot and does not object to the making of an order that the costs thrown away by reason of the adjournment, including the costs of today, should be paid by the applicants.  The question is whether I should make some order that permits those costs to be quantified whether by assessment, taxation or by myself fixing a sum under O 62 r 3(2) as suggested by the respondents.

10                  In all of the circumstances, I am of the opinion that it would not be in the interests of justice to fix a sum of costs at this stage.  I do not believe that the issues are sufficiently clear that it would be fair for me to order one party to pay costs in any particular sum even though the applicants do bear some responsibility for the situation which has arisen.  I think that there is some force in the applicants’ response that it was only until very recently that they perceived the basis on which their claim under s 154A had been opposed.  This may be a result of there not having been directions for the filing of points of claim and points of defence, and it may have been the result of the fact that the solicitors for the parties were unable to identify in any precise way what those issues would be in their correspondence exchanges.

11                  I am of the opinion that the appropriate order to make is that the applicants pay the costs thrown away by the amendment that is sought to be made to their case and that, included in those costs, the applicant pay the respondents’ costs of today in any event.

12                  For the reasons I have given, I reject the respondents’ application to fix a sum or to require the taxation of those costs at this stage.

Associate:

Dated:              7 June 2006