Bendigo and Adelaide Bank Limited v Community First Credit Union Limited

DISCUSSION 7 The principles in relation to the award of indemnity costs are well established. The Court has a broad discretion to order costs: s 43 of the Federal Court of Australia Act 1976 (Cth) (the 'Act'). The Court must consider the overarching purpose as set out in ss 37M and 37N of the Act. Costs ordinarily follow the event and are awarded on a party and party basis unless there are particular or special circumstances which would warrant the Court making a special costs order, including an order that costs be assessed on an indemnity basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232-234 (Sheppard J). 8 It was submitted by CFCU that the particular circumstances that warrant the making of an indemnity costs order here are the wasted costs resulting from a unilateral decision of the solicitors for Bendigo without ever notifying CFCU to delete pagination of the court book from the hearing at first instance when preparing Part C of the Appeal Book. 9 On 29 October 2018, the primary judge made orders in NSD1386/2017 and NSD1389/2017 including order 13 requiring CFCU to file an electronic copy of the court book with page numbers on each page of every document. 10 It is common ground between the parties that, when combined with the original affidavit and annexure pagination, the addition of the court book pagination resulted in dual pagination. 11 We accept that, when preparing the Appeal Book, Bendigo considered that this dual pagination may lead to unnecessary confusion for both the parties and the Court. As references to documents listed in Part B of the Appeal Book would need to refer to the original pagination, and to avoid unnecessary confusion by having multiple sets of pagination on documents in the Appeal Book, Bendigo decided to remove the court book pagination from Part C of the Appeal Book. 12 On 16 July 2020, Bendigo sent an electronic and hyperlinked copy of Part C of the Appeal Book to CFCU. CFCU apparently first raised issues with the removal of the court book pagination by email on 23 July 2020. Bendigo then sent CFCU an email on the same day explaining the reasons for the removal, including that there were instances where the court book pagination could not be removed due to technical difficulties. In these instances, dual pagination remained. 13 CFCU submits that it incurred significant costs because its submissions, which had already been filed, needed to be amended to ensure that the Full Court could correlate the references in its submissions to Part C of the Appeal Book. 14 There is some dispute as to the process and communication between the parties. We are inclined to the view that if CFCU's solicitors had discussed the matter with Bendigo's solicitors after receiving Bendigo's email of 23 July 2020, then the updating of CFCU's submissions could have been avoided, and a mutually agreeable solution could have been found. 15 There was also some dispute as to whether CFCU in any event could reasonably have incurred significant expense in the way it now contends. However, we do not need to consider this further. 16 We are of the view that, to the extent CFCU was materially affected or did in fact incur any unnecessary costs as a result of the court book pagination removal, the circumstances surrounding Bendigo's decision to undertake the court book pagination removal cannot be a basis to justify CFCU's claim for payment of indemnity costs. 17 The task of the court book pagination removal was done in good faith and in an attempt to assist the parties and the Court. It is unfortunate if CFCU was inconvenienced and put to further expense. This is not a basis for awarding indemnity costs as sought here. 18 In our view the decision of Bendigo to undertake court book pagination removal was a reasonable decision undertaken to attempt to reduce confusion resulting from multiple sets of pagination. We do not think that the actions of Bendigo were other than in accordance with the overarching purpose as set out in ss 37M and 37N of the Act. Whilst it may have been a better practice to have consulted more with both CFCU and the Court before removing the court book pagination, we do not think the circumstances surrounding Bendigo's decision give rise to a basis for awarding indemnity costs. 19 We will make the orders substantially in the form sought by Bendigo as set above. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Middleton, Burley and Thawley.