20 This same public interest consideration goes a long way to answering the respondents' present contention that the Commission acted unreasonably in rejecting the compromise offer of 4 October 1993, an offer expressed to be conditional upon the Commission not taking proceedings against the respondents.
21 There is a further consideration which, when added to that, in my opinion, shows that the respondents do not get support for their costs application from the Commission's rejection of that early compromise offer. In the letter the respondents' then solicitors sent on 6 October 1993 to the Commission, the respondents made it clear that IMB was still "anxious to move forward to start its development and build a facility for the community of Logan". Yet they were prepared to give undertakings which, if they had been accepted, would appear to have prevented the applicants from pressing ahead with those development plans on a basis that was in any way similar to that which they had pursued through 1991 to September 1993. The undertakings, if accepted, may not have prevented the respondents continuing to sell insurance policies. But just how IMB might have pressed on with its plans for a large sporting club development while constrained by the offered undertakings was not explained to the Commission in October 1993. Nor is it explained by the respondents now, despite their reliance on this offer of compromise as support for their claim to recover all their costs on an indemnity basis from the Commission. Further, I have found that, apart perhaps from the first few months of operations, the respondents never at any time thereafter had any prospect at all of funding a development, in any of the forms they had under consideration from time to time, in the period 1991 to September 1993. As I noted in my reasons at [303], by mid September 1993 various of the respondents, including Glenn Ivers, had become suspicious of Cowley's bona fides and, in particular, about whether they could have any confidence in Cowley's claims that funding had been arranged. I do not consider it unreasonable of the Commission to reject the 4 October 1993 offer when the respondents made it clear they intended to proceed with their scheme in circumstances revealed at the trial to be such that, at that late stage, they had not been able to identify, through three years of operation, any source of funding that development and when they had already then begun to doubt the bona fides of the person on whom they had for so long relied to find the necessary funding.
22 Moreover, the Commission succeeded in obtaining, over the respondents' opposition, declarations 3, 6 and 7. The Commission, in my opinion, did not act unreasonably or imprudently, in the light of what emerged at trial and the success it there achieved, in rejecting the respondents' offer of 4 October 1993.
23 The respondents also rely, in seeking costs against the Commission, on the manner in which the Commission conducted the litigation, particularly in so far as it initially served the respondents with seventy-nine witness statements and then, late in the piece, after the respondents had expended enormous effort in gathering over 1,300 witness statements of their own, the Commission informed them that it proposed to confine its case to a significantly smaller number of witnesses. I have dealt with one aspect of the Commission's change in the direction of its evidentiary case in the judgment at [36] and [37]. The Commission maintained through the trial much of the case it originally formulated in its first statement of claim, including allegations that the respondents contravened s 52 by making a wide range of representations. What it did, at quite a late stage of the litigation, was confine the range of evidence it decided to rely on in support of that case. I doubt that, if the Commission had at the outset confined its witnesses to the eighteen it ultimately relied on, the respondents themselves would not have embarked on something like the task they did to enlist a huge number of witnesses to support their defence. (This is, of course, a different point from that arising from the fact that the Commission ran to judgment a much more extensive s 52 case than it succeeded upon and that, in consequence, the respondents' evidence gathering exercise was made more complicated than it would have been if the Commission had pruned, at an early stage, the range of representations to be relied on by it.)
24 For these reasons, I do not think the respondents are entitled to have such costs as they do recover, taxed on other than the usual party-and-party basis.
25 It is apparent from the declarations I made on 5 April 2002 that each side of the record has been successful on some discrete issues and unsuccessful on others. But the declarations do not fully reflect the extent of each side's success.
26 The respondents have succeeded not only in defending the Commission's pleaded claims in respect of which I made declarations 1, 2, 4, 5 and 8, but they succeeded also on a number of what can fairly be regarded as "issues" for the purposes of the exercise of the costs discretion. These issues include the "hard sell" issue and the propriety of the way the respondents went about assembling their Category J witness evidence. These subsidiary issues occupied a significant part of the case. Moreover, as I have already noted, the Commission long persisted in, but abandoned late in the day, its s 52 case based on representations with respect to the entry of a Logan team in the Australian Rugby League competition. That, too, took up a significant part of the preparations for and hearing time at the trial. Further, the Commission failed to obtain any of the relief it sought, other than the limited declaratory relief claimed by a late made amendment to its application.
27 So far as the Commission is concerned, in addition to the issues the subject of the declarations made in its favour, it succeeded on some subsidiary issues, the most important of which was that described in my reasons at [140(1)], viz, whether the respondents ever had any prospect of funding their proposed development.
28 In my opinion, this is a case in which the competing claims of the parties in respect of costs should be resolved by giving each of the Commission and the respondents the costs of those issues upon which they succeeded.
29 I respectfully agree with Goldberg J's examination in Dr Martens at [52] to [54] of the principles to be applied in exercising the discretion with respect to costs conferred by s 43 the Federal Court of Australia Act 1976 (Cth), subject only to what I said in Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1331 ("Coogi"). I there noted that courts are now more ready to apportion costs according to the success or failure of one party or the other on the various issues which arise in the course of a trial than they were in 1975, when Jacobs J, in Cretazzo v Lombardi (1975) 13 SASR 4, referred at 16 to his "note of cautious disapproval" of that approach.
30 In Coogi, I also referred to recent cases in which a party entitled to be described as "the successful party" has nevertheless been deprived of part of its costs where nothing more has occurred than the failure of that otherwise successful party on a discrete issue whose litigation occupied a significant part of the hearing. I do not understand there to be any rule that the broad discretion under s 43 can be exercised so as to give a party the costs of an issue on which it has defeated the other party, who itself is successful on other issues, only if the party losing the particular issue can be seen, by raising that issue, to have unreasonably prolonged the proceedings. The statements in Cummings v Lewis (1993) 41 FCR 559 referred to in Dr Martens, I think, are directed to a different situation, viz, where one party can fairly be said to have succeeded on all the issues litigated. In such a situation, though that party would prima facie have a justifiable expectation of recovering all its party-and-party costs, it may nevertheless be a proper exercise of the discretion under s 43 to deprive it of a part of those costs if, though successful overall, it has so conducted the litigation as to unnecessarily prolong it.
31 I will therefore make the following order that: