Bartlett v Roffey

1. The parties bear their own costs of and incidental to the interlocutory application dated 6 September 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Bartlett sought leave to commence defamation proceedings in this Court against the President and three of the directors of the Melbourne Football Club. He did so after having discontinued proceedings commenced by him against the same parties in respect of the same publications in the Supreme Court of Western Australia. The leave was sought to take effect as if it had been given before the proceedings in this Court were commenced. 2 I concluded that the leave sought should be given but on conditions, namely that orders be made transferring these proceedings to the Victoria Registry of this Court and requiring Mr Bartlett to discharge his liability to costs in the Supreme Court of Western Australia before taking further steps in these proceedings. I concluded that those conditions were appropriate in the exercise of the Court's discretion to regulate its own procedures in order to prevent abuse of the Court's process. The abuse arose because the discontinuance of the Supreme Court proceedings had occurred only after Mr Bartlett had resisted unsuccessfully an application to transfer those proceedings to the Supreme Court of Victoria and when formal orders transferring the proceedings were about to be made. I concluded that the discontinuance was for the purpose of rejecting the Supreme Court's authority to manage its own procedures and on the basis that: 'In a federal system where there is substantial concurrent jurisdiction, it brings the administration of justice within such a system into disrepute if a party is able to switch from one court to another simply because the party did not like the outcome of an interlocutory application. It also oppresses the other party unjustifiably'. As to these matters see Bartlett v Roffey [2024] FCA 906. 3 The respondents now seek an order that Mr Bartlett pay the respondents' costs of and incidental to the interlocutory application by which he sought leave to commence proceedings in this Court. The order sought is for costs to be paid on an indemnity basis. 4 The respondents rely upon the acceptance of their submission that the circumstances in which the proceedings were commenced meant that they were an abuse of process. They further submit that the objective of Mr Bartlett in commencing proceedings in this Court was to have the case heard and determined in Western Australia and that he has failed in that objective. 5 They also rely upon two communications with those acting for Mr Bartlett which they say were offers which, if accepted, would have resulted in a better outcome for Mr Bartlett than the orders made on the interlocutory application. 6 The first communication was a letter from the lawyers acting for the respondents to those then acting for Mr Bartlett sent after proceedings were commenced in this Court. Amongst other things it expressed 'serious concerns' that the commencement of the proceedings in this Court (described as an attempt to re-issue proceedings) was an abuse of process. It raised various points concerning the statement of claim, including a claim that the case as to some of the publications was statute barred. It sought the discontinuance of the proceedings to avoid unnecessary costs. It also foreshadowed an application for orders by way of case management if that course was not followed. Those orders were to the effect that the proceedings be stayed pending payment of costs in the Supreme Court proceedings and that the proceedings be further case managed and heard in Melbourne. The letter stated that the matters raised would be relied upon on the matter of costs. In the context of the letter, I take that to be a reference to an application for costs if the proceedings were not discontinued and the respondents succeeded in opposing leave. 7 The second communication was sent directly to Mr Bartlett by lawyers acting for the respondents four days before the hearing of the interlocutory application for leave. It was sent immediately after the respondents' submissions in opposition to the interlocutory application had been delivered. It proposed a compromise of the interlocutory application on the basis that the leave sought would be granted subject to the following conditions: (a) the matter is transferred to the Victorian registry of the Federal Court; and (b) each party bears their own costs of the application. 8 The proposed compromise was advanced even though the position adopted by the respondents in their written submissions was to oppose leave. 9 The position of Mr Bartlett is that the appropriate order as to the costs of the interlocutory application is that they be the applicant's costs in any event or alternatively be costs in the cause. That position is supported by contentions to the effect that Mr Bartlett was successful on the application because he obtained the leave he sought and that the alleged failure in the objective as to where the litigation would be conducted was not relevant. He also made submissions to the effect that it was uncertain as to whether the claims of abuse were properly raised in opposition to the leave application - a point that, in the result, was determined adversely to Mr Bartlett. 10 Recently, in Sharif v Vitruvian Investments Pty Ltd (No 5) [2024] FCA 134 at [30], I summarised the approach that is usually adopted where an indemnity costs order is sought on the basis of alleged unreasonableness by a party in refusing to accept an offer to resolve the whole of the controversy between the parties. In such instances there will be regard to the extent to which the overall outcome was more favourable than the terms of the offer. 11 However, resolution of interlocutory issues gives rise to different considerations. If there is a single interlocutory application the resolution of which opens up the possibility of a range of different outcomes and an offer is made which is not accepted and the outcome of the application is less favourable than the offer then it may be appropriate to apply a similar approach to that which is applied when considering whether to make an indemnity costs order by reason of the refusal of an offer to compromise the whole of the proceedings. 12 Generally though, other concerns will guide whether offers made to resolve interlocutory issues should bear upon the exercise of the Court's discretion as to costs. It is not appropriate for a party to seek to trade off one interlocutory aspect of the proceedings against another. Rather, each aspect of the interlocutory process should be approached by each party separately so that each aspect is addressed according to its own merits. Otherwise, parties may be encouraged to oppose an interlocutory application for the purpose of offering to agree to the orders sought if the outcome of a different interlocutory application is also agreed. Any linking of discrete interlocutory issues for such negotiation purposes is to be discouraged. Rather, parties are required, as to each interlocutory issue, to adopt a position that facilitates the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see, s 37M(1), s 37N(4) of the Federal Court of Australia Act 1976 (Cth); and LFDB v SM (No 2) [2017] FCAFC 207 at [7] (Besanko, Jagot and Lee JJ). 13 I do not accept that the first communication had the character of a proposal to resolve the issue of leave. It advanced the position that the proceedings as a whole ought to be discontinued. 14 I accept that by the second communication, the respondents made clear that they were willing to concede the grant of leave, but that was only on the basis that the proceedings be transferred to Victoria. However, the second communication was made late in the day. The only costs that its acceptance at that time would have avoided would have been the costs of the attendance at the interlocutory hearing where the questions of leave and abuse of process were both to be considered. 15 It may be accepted that the second communication proposed an overall outcome that was more favourable to that which was secured by Mr Bartlett. Nevertheless, it remained the case that the respondents chose to oppose the grant of leave. They did so in circumstances where the Supreme Court proceedings had been discontinued and there was no suggestion that the respondents were being exposed to concurrent multiplicity of proceedings. Much of the costs associated with the interlocutory application concerned that aspect of the application. Mr Bartlett was successful as to that aspect of what was at stake. 16 On the other hand, Mr Bartlett was relevantly unsuccessful when it came to his object of having the proceedings conducted in Western Australia. Indeed, the whole purpose of Mr Bartlett in bringing proceedings in this Court rather than continuing with the Supreme Court proceedings was to seek to have his defamation claims heard and determined in Western Australia. It is appropriate to bring these matters to account in determining the appropriate order as to costs. 17 The award of costs is discretionary: s 43 of the Federal Court of Australia Act. The discretion is to be exercised judicially, guided by established principle: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [34]-[35]. 18 In my view, this is not a case where there was a single interlocutory issue for determination (albeit that there was one application). The substantive issues between the parties on the interlocutory application were whether leave should be given and, if so, whether leave should be conditioned on the basis that the proceedings be transferred for hearing in Melbourne. So, although there was a single application, it became the vehicle for the determination of two matters; should there be leave and, if so, should the proceedings continue in Western Australia. 19 In consequence, in my view, there were two aspects for determination on the interlocutory application. As to the first aspect raised by Mr Bartlett (whether there should be leave to bring the proceedings), the respondents maintained their opposition. As to the second aspect (venue for the hearing), the respondents proposed that Mr Bartlett concede their position on the basis that they would not oppose leave if he did so. The respondents linked the two distinct aspects of the interlocutory application. If indeed, they were of the view that it was appropriate for leave to be granted then, in the circumstances, the appropriate course was to concede that aspect. 20 It is the case that the commencement of the proceedings in this Court was an abuse. However, I have determined that it was an abuse of a kind that would not arise if appropriate conditions were imposed. Those conditions as ordered focus upon where the proceedings are to be conducted, not upon the mere fact of commencement of proceedings after discontinuance of the Supreme Court proceedings. It is the purpose that was sought to be achieved by the course followed by Mr Bartlett that gave rise to the abuse. Therefore, the present case is to be distinguished from an instance where the bringing of the proceedings is an abuse of a kind where it is concluded that it was not proper to bring the proceedings at all and there are no conditions that may be imposed to address the underlying concerns of the Court. 21 Taking all of the above matters into account, I consider the appropriate order as to costs to be that the applicants and the respondents bear their own costs of and incidental to the interlocutory application. For those reasons the formal order will be that the parties bear their own costs of and incidental to the interlocutory application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.