City of Swan v Lehman Bros Australia Ltd

Is each Corporate Defendant only liable severally for costs? 8 Lehman Australia argued that each corporate defendant should be ordered to pay one-third of the Councils' costs severally. Lehman Asia accepted that the discretion to order costs, even on the basis that it were an intervenor, was unconfined. But it argued that because it had sought its own joinder on 12 June 2009, its position was that of an intervenor and so it should be held liable for costs as a party. 9 That argument is without substance. On 5 June, when the proceedings began, they were properly constituted as a vehicle to challenge the creditors' resolution that Lehman Australia execute a deed of company arrangement containing provisions to the effect of those held by the Full Court to be beyond the statutory powers of the creditors to include in such a deed: City of Swan v Lehman Brothers Australia Ltd [2009] FCAFC 130. Importantly, on 12 June 2009, the Councils obtained new causes of action in respect of the deed that had been executed on that day. Lehman Asia was an actual party to that deed as were, conformably with s 444B(2) and (5), Lehman Australia and its administrators. 10 Thus, in any action to set aside the deed Lehman Asia, as a party to it, had to be a defendant. It was a proper and necessary party, as its offer to be joined on 12 June 2009 recognised. Lehman Asia was also the principal proponent of the deed during the earlier administration: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784 at [1]. It filed a defence and cross-claim. It sought relief by having the Court remove or vary the terms of the impugned clauses or order amendments so as to give effect to the intention of those creditors who had voted in favour of the resolution. In addition, it sought an order for rectification of the deed: City of Swan [2009] FCA 784 at [11]-[12]. 11 Lehman Asia had not sought to be added as an intervenor on 12 June 2009. Nor was it content to rely on merely being heard under r 2.13(1) without being made a party. Neither position would have been appropriate. Lehman Asia was a party to the deed. And, Lehman Asia was an active, proper and necessary party to the proceedings that sought that the deed be terminated or declared void. It exercised its rights of participation in the proceedings as a party, including bringing a cross-claim. It had a significant interest in seeking to uphold the validity of the deed of company arrangement, or obtaining relief to similar effect, or to enforce the balance of the deed excluding any clauses found to be invalid. It should be liable for costs as a party. 12 The Court's power to order costs in these proceedings is created by s 1335(2) of the Corporations Act. That provides: "(2) The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs." Thus, the parties accepted in argument that s 1335(2) displaces the broader power to order costs conferred on this Court under s 43(2) of the Federal Court of Australia Act 1976 (Cth). That result had been reached in decisions under the predecessor of s 1335(2) of the Corporations Law. These had held that the terms of the earlier s 1335(2) were mandatory in proceedings like the present that are "under this Act" and the section had displaced the broader powers under s 43(2) of the Federal Court of Australia Act: Australian Forest Managers Ltd (In Liq) v Bramley (1996) 65 FCR 13 at 20F-G, 22C-F, 23D-E per Lindgren J; see too Re Wridgemont Display Homes Pty Ltd (1992) 39 FCR 193 at 196-197 per Jenkinson J. 13 Under s 1337S(1)(c), this Court's rule making powers under s 59 of the Federal Court of Australia Act were extended "without limitation, with respect to costs". Because of the width of the power in s 1337S(1)(c), the provisions of r 2.13 with respect to costs can thus extend to non parties, despite the wording of s 1335(2). 14 Ordinarily, where defendants or respondents in the same interest all participate in the proceedings and fail, as a practical result (but not because of any rule of law or practice) they will be liable jointly and severally to an order that they pay the plaintiffs' costs: cf Probiotec Ltd v University of Melbourne (2008) 166 FCR 30 at 44-46 [53]-[61] per myself, Finn and Besanko JJ agreeing. In general, the purpose of an order for costs is to indemnify, at least partially, a successful party: Probiotec 166 FCR at 44 [51] and Cachia v Hanes (1994) 179 CLR 403 at 410-411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ. 15 The consequence of ordering each of the corporate defendants to pay one-third or some other proportion of the Councils' costs severally, would be to put at risk the efficacy of the partial indemnity, were one or more of the defendants either incapable of paying its portion or recalcitrant. Despite their insolvencies, it is not suggested that the corporate defendants will not be able to meet any costs order. I am satisfied that it would not be appropriate or just to reduce their liabilities from being joint and several merely because they were the three unsuccessful active parties. They can seek contribution among themselves after one or more has paid the Councils. In principle, the Councils should be free to seek recovery of the full amount of any costs order against all of the corporate defendants, each of which took an active part in the proceedings. Each of them contributed to the costs being incurred, at least while a party (see below) in a way which, as between them and the plaintiffs was not readily distinguishable. Each of the corporate defendants was essentially in the same interest, adopting and reinforcing arguments the others put, even though there were some individual substantive (but as the matter proceeded, in the result, not substantial) differences between them (e.g. the different results sought in Lehman Asia's and Lehman Bros' cross-claims): see too Probiotec 166 FCR at 49 [73] per myself, at 52 [91] per Besanko J, and at 32 [1] per Finn J.

Lehman Bros' Position 16 Lehman Bros' position was different to that of Lehman Asia. Lehman Bros was not a necessary party to the proceedings. However, it obtained significant and express benefits from the impugned provisions in the deed of company arrangement. And, as its cross-claim showed, if it lost those benefits because the impugned provisions were found to be invalid, unlike Lehman Asia, Lehman Bros wanted the deed then to terminate and Lehman Australia to be wound up. Lehman Bros argued that its liability for costs before 16 July was governed by r 2.13(2) and that s 1335(2) prevented any wider order for costs being made against it before that date. 17 Rule 2.13(2)(a) provides that the Court may direct that a person granted leave under r 2.13(1) to be heard, without becoming a party in a proceeding, if it considers that the attendance of that person has resulted in additional costs for any party that those costs should be borne by the person. Lehman Bros argued that the Councils had not incurred any additional costs because of its attendances prior to 16 July. I reject that argument. It is inconsistent with the substantive position put by Lehman Bros at the hearing on 10 July. 18 Lehman Bros also argued that because it was not a party before 16 July, r 2.13(2) was the sole source of its liability for costs. I am of opinion that s 1335(2) gives the Court power to award costs against a party, including costs incurred by the successful party before the new party had been joined. The power to order costs in s 1335(2) is not confined, once the Court considers that a party to the proceedings should be ordered to bear them. Of course, the time and circumstances of a party's joinder will be relevant to the exercise of the discretion to order costs, particularly in respect of any period before that joinder: see Probiotec 166 FCR at 49 [72]. 19 Here, Lehman Bros contemplated from its first appearance that it may wish to become a party. By 10 July 2009 that position had become substantially clearer. During the hearing on that day its counsel recognised the likelihood that Lehman Bros would become a party and argued in anticipation that it would put its own substantial case forward in the litigation. Of course, once it became one, Lehman Bros would assume the obligations of a party under the Federal Court (Corporations) Rules and the Federal Court Rules, including discovery. By this time, it was apparent that unless an order for an early trial of separate issues was made (a course resisted by Lehman Bros) these proceedings would be complex, lengthy and involve considerable discovery. The classes of documents sought in the subpoena broadly included documents that would have been discoverable by Lehman Bros. I have not considered whether the terms of the subpoena were appropriate in every respect. However, they reflected (whether or not, if challenged, they would be found too broad or imprecise) classes of documents that would be likely to be relevant for collection or consideration by Lehman Bros' lawyers for the purpose of discovery. Thus, much of what Mr Hoser's affidavit referred to was work that would have been required to be done in any event, even if no subpoena had been issued. 20 In Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 at 649-651 Mansfield J examined the scope of the discretion to make an order for payment of a third party's reasonable costs and expenses in complying with a subpoena under the predecessor of FCR O 27 r 11. The present rule also provides the Court with a similarly wide discretion to order a party that causes a subpoena for production to be issued to pay the subpoenaed person's reasonable costs and expenses of compliance. The subsequent joinder of that person as a party, however, may be relevant to the exercise of that power: Simpson v Monteith [2009] NSWSC 156 at [54]-[58] per Hoeben J. He noted that the obligation of the person subpoenaed to discover the same documents after becoming a party would normally make the costs of production of so much of the documents as were discoverable, the new party's costs in the proceedings. And, like here, in Simpson [2009] NSWSC 156 at [57], the documents had not been required to be produced before the joinder. 21 I am of opinion that the liability of Lehman Bros for costs must be decided under s 1335(2). This is because it became a party to the proceedings and the costs that are both payable to it and by it are costs of the proceedings within the meaning of s 1335(2). The history of Lehman Bros' involvement and the existence of each of r 2.13(2)(a) and FCR O 27 r 11 are relevant to the exercise of the power under s 1335(2). But by becoming a party, Lehman Bros changed its status and subjected itself to the provisions of s 1335(2). And, ordinarily, FCR O 6 r 11(3), provides where a party is added the date of commencement of proceedings so far as concerns that party, is the date of filing of the originating process joining that person. 22 I am of opinion that neither FCR O 27 r 11 nor r 2.13(2)(a) should be construed as a code that excludes the wide discretion under s 1335(2) to make appropriate orders for costs in respect of a person to whom those rules would otherwise apply once the person has later become a party to the proceedings. First, s 1335(2) is a statutory provision, whereas the others are Rules of the Court. Secondly, the power under s 1335(2) to make a just and appropriate order for costs against a party, once that person has been joined, is not excluded expressly or by necessary implication. It would be possible for injustice to occur if the Court were obliged to allow a person to benefit from any delay in being joined as a party in order to take advantage of its then non-party status. For example, it could do this in order to apply under FCR O 27 r 11 for its expenses of answering a subpoena even though, if it became a party, it would be liable to discover the same documents. Or a person could delay seeking to be joined until very close to the hearing so as to take advantage of the limited liability for costs under r 2.13. In addition, the Court can join a party of its own initiative under r 2.13(4)(b). The existence of that power suggests that the Court can override a recalcitrant person's desire to avoid liability for costs for a time when it simply seeks to be heard under r 2.13(1) rather than immediately to assume the obligations of a party. The exercise of that power will depend on an assessment of its appropriateness having regard to the person's role in relation to the subject matter of the proceedings. 23 Here, on and from 12 June Lehman Bros had a real and active role in the proceedings that went beyond a mere watching brief or an interested creditor. The formality of its position was refined over a period so that by 10 July 2009, it was asserting a likelihood that it would seek to become a party. While it could have remained in the position of a non party, had it chosen to do so, I am satisfied that by 10 July 2009 Lehman Bros was substantively, if not formally, in the position of an active party in the proceedings. Its decision to formalise its participation, by becoming a party, changed the form of its earlier participation but not much of its substance. That had been in the character of a party, despite its formal stance under r 2.13(1). The relief it later sought and the defence it pleaded went to the heart of the issues in the whole proceedings. But, these were consistent with the objectives it had pursued up to then in argument. The Councils should be entitled to their costs against Lehman Bros in respect of the work preparatory to its formal joinder, just as they would be entitled to seek recovery on a taxation of costs reasonably and properly incurred before any proceeding was commenced. 24 I am satisfied that much, if not all, of the documents and work claimed by Lehman Bros in respect of the subpoena would have been incurred had discovery been ordered. Some of that cost would be likely to have been incurred in any event by 16 July 2009 had Lehman Bros been joined in anticipation of discovery and in preparation of its pleading of, and collection of evidence for, its defence and cross-claim. However, since discovery was not ordered, some of the work was undertaken prematurely and may not have been of immediate utility to Lehman Bros at the stage the proceedings had reached by 16 July 2009. I am not satisfied that it is appropriate to order a separate taxation of Lehman Bros' pre-joinder costs and expenses under O 27 r 11 or r 2.13(2)(a). Rather, I consider that justice can best be done by making a costs order against Lehman Bros for a proportion of the whole of the plaintiffs' costs. This will balance the consequences of any present unnecessary costs and expenses in respect of the subpoena and the gradual transformation of Lehman Bros' role from one under r 2.13 to that of a party, on the one hand, with its overall lack of success in the proceedings on the other. 25 The substantive questions during the case management phase of the proceedings leading to Lehman Bros' joinder were largely concerned with the best means of arriving at a prompt resolution of what appeared to be a very complex case. This culminated in my reserving questions for the Full Court that lead to a decisive outcome. Lehman Bros was unsuccessful in its opposition to that process and in the result. It should bear a substantial share of the Councils' costs. 26 In all of the circumstances, I am of opinion that justice will be done by requiring Lehman Bros to pay 75% of the Councils' costs of the whole proceedings jointly and severally with the other two corporate defendants who are liable for the whole of those costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Dated: 21 October 2009 Counsel for the First, Second and Third Plaintiffs: D Sulan

Solicitor for the First, Second and Third Plaintiffs: Piper Alderman

Solicitor for the First, Second and Third Defendants: D Cowling of Clayton Utz

Counsel for the Fourth Defendant: DL Williams SC

Solicitor for the Fourth Defendant: Dibbs Barker

Counsel for the Fifth Defendant: E Hyde

Solicitor for the Fifth Defendant: Jones Day