Arrowcrest Group Pty Limited v Gill

REASONS FOR JUDGMENT ON COSTS LINDGREN J: Reasons for Judgment on this appeal were delivered on 14 August 1996. The Court ordered that the appeal be dismissed, that the costs at first instance abide the decision of the trial Judge, Tamberlin J, and that there be no order as to the costs of the appeal. The orders have not been entered. The respondent ("Mr Marks") sought leave to make further submissions designed to persuade the Court to order the appellants ("Microsoft") to pay his costs of the appeal. The parties have provided written outlines of the submissions on costs which they would make if leave were granted and have elaborated on those submissions orally. Microsoft did not submit that leave should not be granted and I think that it should. The reason why, notwithstanding dismissal of the appeal, Mr Marks did not obtain an order for costs on 14 August 1996 is that he failed on a submission that the appeal was not competent. In sum, his submission was that the appeal was incompetent because it constituted an appeal against the acquittal of a criminal charge. The reasons for rejection of the submission appear in the earlier Reasons for Judgment. Mr Marks now makes two principal submissions as to why Microsoft should be ordered to pay his costs: first, that there is no reason why costs should not follow the event and that "the event", for this purpose, is the result on the appeal, namely its dismissal; secondly, that the case was undertaken by his counsel "pro bono on a contingency fee basis at the request of this Court". I will address the latter point first. Mr Marks read an affidavit of Brendan Leonard King, a partner of the Victorian firm Belleli King & Associates. Mr King had acted for Mr Marks in the proceeding at first instance before Tamberlin J but had ceased acting for him on or about 18 March 1996 because he was unable to arrange appropriate funding or legal aid. Mr King's affidavit shows that the List Judge, Sheppard J, caused an inquiry to be made of the New South Wales Bar Association as to whether it could procure someone to appear for Mr Marks on the hearing of Microsoft's appeal; that the Association had contacted Mr B A M Connell of counsel who had appeared for Mr Marks on the trial before Tamberlin J, instructed by Mr King; and that Mr Connell, with Mr D R Sibtain of counsel, agreed to represent Mr Marks, again briefed by Mr King, "pro bono on a contingency fee basis" as mentioned earlier. I take this to mean, relevantly, that the legal practitioners who represented Mr Marks on the appeal were not to be paid unless Microsoft was ordered to pay Mr Marks' costs. Mr Marks submits that a favourable view should be taken of the position of legal practitioners who appear in such circumstances for necessitous litigants and that this view should affect the disposition of the issue of costs as between the parties. I think that the submission should not be accepted. At the outset, I am quick to commend the New South Wales Bar Association, and in particular, Mr Connell and Mr Sibtain who appeared for Mr Marks on the hearing of the appeal. They did so on the basis mentioned and have, without remuneration, helped Mr Marks to obtain the result to which we have held he was justly entitled. Moreover, their representation of Mr Marks has positively assisted the Court in performing its function. Without adequate legal representation of the kind that both parties had on the hearing of the appeal in this case, there is the danger that justice will not be properly administered. However, it lies in the hands of Government, not of the courts, to address the problem of impecunious litigants. The present case illustrates but one aspect of the inability of a court to redress the imbalance. Acceptance of Mr Marks' submission would involve the making of a special costs order favourable to him and unfavourable to Microsoft which would not have been made if Mr Marks had been paying for his legal representation. It would be wrong that a litigant in the position of Microsoft should have to sustain a forensic disadvantage by reason of a special costs arrangement between the opposing party and the legal practitioners appearing for him. I could not support such discrimination against the opponents of impecunious litigants. It is not amiss to notice that once introduced, the discrimination would apply, not only against corporations such as Microsoft, but also against individuals who, perhaps with difficulty and by borrowing, find the resources with which to pay for legal representation. I turn now to Mr Marks' other submission. He points to the fact that the case concluded within a day and submits that although he failed on the issue of the competency of the appeal, his overall success signifies that the usual order for costs in favour of a successful party should follow.