Costs forthwith
15 Rule 40.13 of the Federal Court Rules 2011 (Cth) ('FCR') provides the following:
40.13 Taxation of costs awarded on an interlocutory application
If an order for costs is made on an interlocutory application, the party in whose favour the order is made must not tax those costs until the proceeding in which the order is made is finished.
Note: The Court may order that costs of an interlocutory application be taxed immediately.
16 This rule creates the ordinary rule that costs of an interlocutory application are not to be taxed immediately. As the note to the rule intimates, however, the ordinary rule may be displaced and an order may be made for costs to be paid forthwith by engaging either FCR 1.34 or FCR 1.35: see Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 ('Spirits') at [5]-[6].
17 Displacing the ordinary rule does not occur as of usual course. Central to the inquiry of whether costs should be paid forthwith is an assessment of whether the interests of justice in the circumstances sufficiently outweigh the policy considerations behind FCR 40.13 to justify a departure from the rule: Axent Holdings Pty Ltd v Compusign Australia Pty Ltd (No 3) [2018] FCA 6 at [13]. Those policy considerations include the desirability of avoiding multiple taxations, the dissuasion of the pursuit of multiple interlocutory applications and a recognition that set-offs may be available where prior or subsequent cost orders are made in the opposite direction: Courtney v Medtel Pty Limited (No 3) [2004] FCA 347 at [20]; Bailey v Beagle Management Pty Ltd [2001] FCA 60; 105 FCR 136 at 145 [37].
18 The ordinary rule is therefore only departed from where the interests of justice require such a departure: Thunder Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd [1992] FCA 423; 36 FCR 297 at 312. This may occur where final judgment (and therefore taxation of costs) will not be delivered for a substantial period of time, where the interlocutory disputation is discrete from the rest of the proceeding or where a party has engaged in unreasonable behaviour which has caused the other party to incur significant additional expenditure which would not have been incurred if the other party had acted with competence and diligence: Spirits at [9].
19 The last consideration is of particular note. An order for costs to be payable forthwith is not to be seen as akin to an indemnity costs order or an adverse costs order. It is to be borne in mind that where a party relies on the unreasonable conduct of the other party in its interlocutory disputation, an order for costs to be payable forthwith will generally only be made where the conduct has caused significant additional costs such that the interests of justice demand a departure from the ordinary rule: Spirits at [11].
20 Turning to the present application, the costs of the Pleading Amendment Applications may be dealt with first. On 31 October 2018 I refused with costs an application brought by the Applicant to file further amended pleadings: Capic v Ford Motor Company of Australia Limited (No 7) [2018] FCA 1631. The application had been brought shortly after a new team of solicitors was engaged to assist the Applicant in the matter. The new pleadings enlarged the class and raised a number of new allegations, many of which were supported by a statement of agreed facts between the ACCC and the Respondent tendered in another proceeding ('the ACCC Proceeding') and annexed to the judgment Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited [2018] FCA 703. That judgment had been handed down on 22 May 2018. The Applicant again sought to file further amended pleadings for which leave was granted by consent on 24 January 2019 with costs thrown away ordered in favour of the Respondent.
21 The Respondent pointed to four factors as to why those costs should be paid forthwith. First, this proceeding is listed for trial on 15 June 2020 for six weeks and therefore it will not receive the fruits of its order for costs for a significant period of time. Secondly, the Pleadings Amendment Applications contributed to the vacation of the previous trial date. Thirdly, the long delay in the close of the pleadings has been exacerbated by the Applicant's pursuit of ill-considered and unnecessary claims. Fourthly, the change in scope and nature of the claims under the amended pleadings brought after a late change in solicitors has resulted in 'an essentially new case'.
22 Whilst there may be some aspects of the pleadings that were amended upon review by the Applicant's new team of lawyers, many of the amendments brought in new components as a result of the admissions made by the Respondent as disclosed in the ACCC Proceeding. The timing of that proceeding and judgment was not in the Applicant's control.
23 Further, whilst I rejected the first pleading amendment application, I did in principle permit many of the proposed amended claims if properly pleaded such as the expansion of the group definition and the unconscionable conduct claim. The second pleading amendment application was then granted by consent with costs thrown away. Given that the pleading amendments principally enlarged the claim, I agree with the Applicant's submission that it is not clear if there are any costs thrown away or, if so, what they would be.
24 Nor, as the Respondent submitted, was the previous trial date vacated because of the Pleading Amendment Applications. The previous trial date was vacated for a menagerie of reasons of which the then foreshadowed Pleading Amendment Applications was largely a dormant member. This is plain from my published reasons for vacating the trial date: Capic v Ford Motor Company of Australia Limited (No 6) [2018] FCA 982.
25 Accordingly, the factors pointed to by the Respondent do not justify a departure from the ordinary rule. I will not order the costs of the Pleadings Amendment Applications to be paid forthwith.
26 That leaves the costs of the Communications Application and Anti-suit Injunction Application. I have set out the background to the Anti-suit Injunction Application above. The Communications Application was heard at the same time as the first pleadings amendment application. The Applicant by interlocutory application sought to restrict the Respondent's communication with represented and, separately, unrepresented group members. The communications in question related to settlement offers made by the Respondent to customers after they sought to have their vehicles serviced. The Applicant had previously sought injunctions two years prior in similar terms which I refused to make: see Capic v Ford Motor Company of Australia Limited [2016] FCA 1020.
27 After the change in solicitors, the application with respect to represented group members was withdrawn. I refused to order the injunction against the unrepresented group members as the Respondent was already acting in accordance with the terms on which the injunction was sought: Capic v Ford Motor Company of Australia Limited (No 7) [2018] FCA 1631 at [29].
28 Turning to the present application, I do not accept the Applicant's submission that because class actions, as a pedigree of legal proceedings, inherently breed interlocutory disputation, the Applicant's conduct is to be seen in that context. As outlined above, the palaver that caused the Anti-suit Injunction Application should never have happened. I can also comfortably say, having been reserved on the matter prior to the change in lawyers, that the Communications Application was an exercise in futility. Mere susceptibility to interlocutory disputation does not justify unmeritorious or unnecessary disputes, nor does the consequential prospect of potential set-offs naturally defeat an application for costs payable forthwith.
29 But those observations by themselves do not sufficiently ground an order for the costs to be paid forthwith. What must be shown is that the circumstances of the application outweigh the policy considerations that ground the ordinary position in FCR 40.13.
30 The Applicant conceded that the Communications Application was a discrete application and noted the delay to the final resolution of these proceedings. Further, as I have observed above, the Communications Application was misconceived. However, whilst the Respondent submitted that it incurred significant additional expenditure in respect of the Communications Application, it has not pointed to what those significant additional costs are apart from its response to the Communications Application. As the Respondent noted, the Communications Application sought nothing more than what the Respondent was already doing. The Respondent accordingly won its costs on the application, but it does not follow that those costs ought to be paid forthwith.
31 Similar considerations apply to the Anti-Suit Injunction. Whilst the Applicant's conduct in her multiple failed attempts to obtain discovery in the US may possibly amount to conduct warranting an order for costs payable forthwith, the Anti-suit Injunction Application only formed one part of that conduct. On 30 August 2017 I ordered costs against the Applicant with respect to the initial letter of request application, the costs of which was fixed in the amount of $61,695.58 on 13 December 2017. The Respondent does not seek those costs forthwith. Consideration should therefore be confined only to the circumstances that gave rise to the Anti-suit Injunction Application. The Respondent has not pointed to any significant additional expenditure it incurred as a result apart from preparing and filing the Anti-suit Injunction Application. This in itself does not justify departing from the ordinary rule.