Crowley v Worley Limited

1. The Originating Application and Fourth Further Amended Statement of Claim be dismissed.
2. The applicant pay the respondent's costs of and incidental to the proceedings, including the costs of and incidental to the initial trial. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J: 1 In Crowley v Worley Limited (No 2) [2023] FCA 1613, having answered the 15 questions agreed upon by the parties, I gave the parties the opportunity to file and serve written submissions and any affidavit or affidavits in support in relation to the question of costs and the making of final orders. Written submissions and affidavits have now been filed and served, and as I anticipated at [266], it is appropriate that I decide those remaining questions on the papers. In the reasons below, I adopt the glossary set out at [4] of my merits judgment. 2 The parties are agreed that I should now make orders that the proceeding be dismissed. 3 As to costs, WOR submits that the applicant should pay WOR's costs of and incidental to the proceedings, including the costs of and incidental to the initial trial (which was the subject of the judgment in Crowley v Worley Limited [2020] FCA 1522). The applicant submits that I should apportion costs and order that the applicant pay 50% of WOR's costs of the initial trial and the remitted hearing, or such other percentage as I determine is appropriate. 4 While I accept that the applicant succeeded with respect to a significant number of the questions posed for my determination, the claim was in substance made for the payment of compensation, and the applicant has failed to prove the causation of any loss. Accordingly, to the extent that the applicant has succeeded in obtaining favourable answers to some of the questions, that represents a Pyrrhic victory, as the applicant's limited success has not produced any substantial benefit by way of compensation to the applicant or Group Members. As Kiefel and Keane JJ indicated in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs & Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [242], a Pyrrhic victory such as that would not be a sound basis on which to make an award of costs in the applicant's favour. In my view, the applicant should therefore pay the costs of WOR, and I do not see any reason why that costs order should not extend to the costs of and incidental to the initial trial, much of the evidence from which was relied on by the parties in the remitted hearing before me. Because of the reliance placed by the parties at the hearing before me on the evidence which had been adduced at the initial trial, the remitted hearing before me was able to be conducted in five hearing days, compared to the twenty hearing days occupied by the initial trial. 5 Accordingly, I order that: (1) The Originating Application and Fourth Further Amended Statement of Claim be dismissed. (2) The applicant pay the respondent's costs of and incidental to the proceedings, including the costs of and incidental to the initial trial. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.