Backo v Australian Competition & Consumer Commission

REASONS FOR JUDGMENT THE COURT: 1 This is an application for leave to appeal various orders made by a single judge of this Court on 3 December 2004. By a notice of motion, the present applicants for leave to appeal sought, from a single judge of the Court, essentially, lump sum payments as costs, pursuant to orders that a Full Court (Cooper, Kiefel and Emmett JJ) had made on 20 February 2003 in proceedings Q67 of 2002. 2 The Full Court on that day had ordered, amongst other orders, that the appeal from Drummond J be dismissed, the cross-appeal be allowed, the declarations made on 5 April 2002 be set aside, and, in lieu thereof, it be ordered that the proceedings be dismissed with costs, and the appellant/cross-respondent to pay the respondent/cross-appellant's costs of the appeal. The orders of the Full Court were entered. 3 It is wrong to think that there is power to vary or go behind the orders of the Full Court in respect of costs, by reliance on O 62 r 4 of the Federal Court Rules. Order 62 rule 4 provides: '(1) Subject to this Order where by or under these Rules or any order of the Court costs are to be paid to any person, that person shall be entitled to his taxed costs. (2) Where the Court orders that costs be paid to any person, the Court may further order that as to the whole or any part of the costs specified in the order, instead of tax costs, that person shall be entitled to: (a) a proportion specified in the order of the taxed costs; or (b) the taxed costs from or up to a stage of the proceeding specified in the order; or (c) a gross sum specified in the order; or (d) a sum in respect of costs to be ascertained in such manner as the Court may direct. (3) The court may make an order under subrule (2) at any time, whether or not an order that costs be paid to a person has previously been made or entered.' 4 In our judgment, there is no power in a single judge of the Federal Court, either pursuant to O 62 r 4, or otherwise, to entertain the notice of motion filed by the present applicants in September of last year, which, in effect, sought to provide for the payment of costs in a way other than that provided by the costs orders made by the Full Court. As the Full Court did not self-assess the costs, there was no power in a single judge of this Court to do so. 5 Even if this conclusion be wrong, and there was power to entertain the notice of motion filed by the present applicants, the orders made by the primary judge were interlocutory, and consequently, leave to appeal those orders is necessary: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 6 Apart from the question of the order for costs on the notice of motion, leave to appeal should be refused, because the applicants have not shown that they have suffered irremedial prejudice, even if it be the case that the judgment below was erroneous. They have not suffered irremedial prejudice, because they are still entitled to enforce the costs orders made by the Full Court by the method contemplated by the Full Court and the Rules of the Federal Court, namely, taxation. 7 Even if the applicants for leave were to be successful in their proposed appeal in showing error in the primary judge's reasons for judgment, the matter would have to go back for further factual findings about particular claims for costs. We therefore refuse leave, except to the extent of granting leave in respect of the costs order made by the primary judge on 3 December last year. Because of our understanding of how that application by the present applicants came to be made, that order for costs should be set aside. 8 We otherwise refuse leave and direct the matter proceed by way of taxation of costs before a Registrar. 9 We would hope that before the expenditure of any further significant sum is made, the parties should engage in mediation. In respect of the proposed mediation, we should point out that much of the claim made on behalf of the applicants seems to be misconceived and misunderstands what truly are the costs to which the unrepresented applicants may be entitled. Nonetheless, it is difficult to imagine that the successful cross-appellants and respondents in the Full Court proceedings would not be entitled to some costs, both of the proceedings at first instance and the proceedings on appeal. 10 Should mediation be unsuccessful, we would anticipate that taxation would have to proceed in the ordinary way before a different taxing officer. In that event, we express the view that the taxing officer, in seeking to tax the costs to which the present applicants for leave are entitled pursuant to the orders of the Full Court, should not feel inhibited by any observations made by the primary judge concerning the applicants' broad and unspecified claims, which were the subject of observations in the reasons published on 3 December last year. 11 Subject to the limited grant of leave that we have indicated, the purported notice of appeal for which leave is sought should be dismissed as incompetent, and leave refused on the application for leave to appeal, save that, in respect of the orders for costs, that order is set aside. There should be no costs of this application.