FEDERAL COURT OF AUSTRALIA

Oswal v Apache Corporation (No 2) [2014] FCA 778

THE COURT ORDERS THAT:

1.    The application pursuant to r 39.04 of the Federal Court Rules 2011 (Cth), to vary the costs order made on 24 June 2014, be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1    The Court on 24 June 2014 dismissed the application by the applicant for orders staying the proceeding and ordered that the applicant pay the respondent’s costs of the stay application. It also ordered that the matter proceed to trial on all issues other than damages.

2    The applicant has applied pursuant to Federal Court Rules 2011 (Cth) r 39.04 for an order that the costs order, which has not yet been entered, be varied such that, rather than an order for costs in favour of the respondent, there be an order that the respondent pay 30% of the applicant’s costs of the application. The application was dealt with on the papers including further written submissions from both parties.

3    As a Full Court recently reiterated the discretionary power conferred under r 39.04 is to be used only sparingly, with great caution and rarely, having regard to the public interest in the finality of litigation. The discretion is exercised to cure injustice, particularly where it would otherwise be irremediable. The grounds for exercising the discretion are various but include error, oversight, a misapprehension of the law or a decision given in ignorance or forgetfulness of a statutory provision: Ashby v Slipper (No 2) [2014] FCAFC 67 at [12]-[14], and the cases there cited. See also Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [80]-[84].

Relevant circumstances

4    When judgment was delivered on 24 June 2014 both parties had an opportunity to, and did, make submissions. Counsel for the respondent made submissions on the separation order being made by reference to pleaded issues and listing the matter for directions. The applicant’s counsel expressed his satisfaction with the concise separation order proposed in the reasons and opposed the matter being listed for directions. However, he made no submissions as to costs.

5    A party should ordinarily make submissions on costs during a hearing. As Wilcox and Kiefel JJ in Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 at [1]-[2] stated:

[1]    After judgment was delivered in this matter the respondent, LFOT Pty Limited, sought a variation of the costs order the Court had made. Written submissions were supplied and the appellant provided submissions in reply.

[2]    No reference was made to the matter of costs during the hearing of the appeal.  This was the appropriate time to put any submission that costs, whether of the trial or appeal, ought not to follow the event.  If it had been thought desirable to have the Court’s decision on the substantive issue before putting submissions in relation to costs, as is sometimes appropriate in complicated cases, this could and should have been raised with the Court during the hearing.  It is inappropriate for a party to say nothing about costs, or any other ancillary matter, during the hearing, await the outcome of the appeal and then ask the Court to vary its orders.

Emmett J at [5] agreed.

6    The Full Court in Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122 at [1]-[2] expressed a similar opinion.

7    No submissions were made as to costs during the hearing, despite the fact that at one stage the Court raised the question of costs.

8    The Court should assume parties have nothing to say about costs, if they have not specifically dealt with that subject: ACCC v Daniels Corporation Pty Ltd [2001] FCA 936 at [11]. See also Grygiel v Baine (No 2) [2005] NSWCA 434 at [12].

9    The applicant’s submissions are silent as to why the discretion under r 39.04 should be exercised in his favour. None of the considerations to which the Full Court in Ashby v Slipper (No 2) referred arise here. The applicant’s submissions were, in effect, as to the appropriate order as to costs which could and should have been made during the hearing. Even if they had been made I would still have made the same order. The application for a stay was wholly unsuccessful. The order for splitting the issues suggested by the Court at the outset of the hearing was resisted by the applicant although the respondent would have been content to agree to such an order.

10    There is no basis for setting aside the costs order. The application under r 39.04 will be dismissed with costs.

Associate:

Dated:    25 July 2014