The plaintiff's submissions
16 Mr Gleeson of counsel appearing for Currabubula initially took the Court through a close examination of paragraphs 65 to 68 of the costs judgment. He submitted that it was apparent that one of the matters put to the Court on Currabubula's part had been that Paola Holdings had not substantially added to the costs of the proceedings because it was there merely as a fall back in the event that there was a standing problem with Currabubula. He referred in this regard to paragraph 65 of the judgment.
17 He then pointed out that the Bank had been taking the position that Paola Holdings had been unsuccessful and ought to pay various components of the Bank's costs. He referred in this regard to paragraphs 66 and 67 of the judgment.
18 He then submitted that paragraphs 69 and 70 showed that the Court was moved essentially by the proposition that Currabubula had obtained substantial success on its contract and defamation claims so that the usual costs order would follow subject to one matter. The proviso was that it was necessary to give some credence to the Bank's submissions that Currabubula had failed on some of its claims for particular heads of damage.
19 Mr Gleeson then submitted that the Court's reasoning led it in paragraph 70 of the judgment to indicate the appropriate order as requiring that the Bank pay 90% of Currabubula's costs of the proceedings. Mr Gleeson's submission was that the words "the costs of the proceedings" as used in the judgment and the order were deliberate and were intended to reflect all costs incurred by Currabubula in the proceedings. The submission was that the Court did not indicate, nor express, any intent that there would be some further reduction in Currabubula's costs on account of the fact that Paola Holdings had for a period of time also asserted similar claims.
20 Mr Gleeson then took the Court to what he submitted was a very important finding to be found in the second sentence of paragraph 71, this being that most of the costs of the bank which had been incurred in defending the claim by Paola Holdings were the very same costs as were incurred in defending Currabubula's claims. The submission was that the Court was drawing attention to a particular feature of the matter which was that the very same costs had been incurred. Mr Gleeson then turned to page 26 of the judgment where the Court recorded what Mr Gleeson described as an incorrect submission by Mr Macfarlan QC, which was that Paola Holdings had failed and therefore ought to pay all the Bank's costs or at least the costs involving its own claims. On Mr Gleeson's submissions, Mr Macfarlan was focusing on a correct fact, mainly the failure in the proceedings of Paola Holdings, but ignoring the reality which the Court had identified in paragraph 71 of the Judgment.
21 Mr Gleeson then made reference to paragraphs 73-76 where Paola Holdings was said to have been joined in an unusual circumstance, the question of standing having had to be determined by the trial Judge.
22 Mr Gleeson next pointed out that the judgment then dealt with the submission which Mr Ryan, counsel for the plaintiffs, had put, which was that what Mr Macfarlan had been seeking was in effect a form of punishment. On Mr Gleeson's submissions, Mr Macfarlan was seeking to have a punishment imposed by reason of Currabubula's decision to join Paola Holdings to guard against standing issues. The form of punishment was to effectively deprive Currabubula of its costs. Mr Gleeson submitted that what Mr Macfarlan had been putting and what the Court addressed in these paragraphs, was Mr Macfarlan's application for what was being given by the Bank on the one hand, to be taken away on the other hand through orders concerning Paola Holdings. Mr Gleeson submitted that Mr Ryan's submission and approach had been that it would be inappropriate to make orders which effectively punished Currabubula.
23 Mr Gleeson then referred to the 3rd sentence of paragraph 76 of the Judgment in which the finding accepted Mr Ryan's submission that the vast majority of the trial involved the question of whether the Bank had breached its contractual obligations and had defamed Currabubula. Mr Gleeson sought to rely on that finding as indicating what the Court was doing and intending to do. He particularly drew attention to the last sentence of paragraph 76 submitting that it is clear from the judgment that it was simply not realistic to suggest that the case should properly be viewed as one in which the plaintiffs effectively failed.
24 Mr Gleeson then in referring to the proposed order set out in paragraph 79, drew attention to use of the words "costs of the proceedings". He pointed out that these were the same words as the Court had used with respect to Currabubula in paragraph 70. He then drew attention, by contrast, to paragraph 72, again referring to Mr Macfarlan's two submissions. The most extreme submission, so Mr Gleeson put, was that Paola Holdings ought to pay presumably all of the Bank's costs in the proceedings; the lesser submission being that Paola Holdings ought to pay all of the Bank's costs of the proceedings insofar as they involved Paola Holding's claims. In Mr Gleeson's submission, reading paragraphs 79 of the judgment in the light of the whole of this section of the judgment, but in particular in light of paragraph 72, what the Court had determined in paragraph 79 was plainly that Paola Holdings would pay 20% of the Bank's costs of the proceedings - not simply the costs relating to Paola Holdings claims in the proceedings. Mr Gleeson then made two observations about the expression "costs of the proceedings". Mr Gleeson's submission was that the reasons for Judgment showed that the expression had been chosen deliberately to avoid getting into further exercises of apportionment. On Mr Gleeson's submission what that meant was that in the current taxation, Currabubula needed to establish, bearing in mind the terms of the Legal Profession Act, what were the costs which it incurred to its lawyers in the proceedings; that it loses 10% and similarly, that the Bank, subject to one question, having established its costs of the proceedings, could then recover 20% of those costs from Paola Holdings. The proviso was that there might be a question as to whether the Court intended that the obligation of Paola Holdings to pay 20% of the Bank's costs commenced to run only from the joinder of Paola Holdings.
25 Mr Gleeson then turned to the problem which had emerged and which is thrown up reasonably clearly by the above set out correspondence. He submitted that there were immediately two particular matters that required to be noted. The first was that it was only an issue which had arisen with respect to Currabubula. The second was that it did not give Currabubula any discount were additional plaintiffs to be joined. He then referred to the evidence that there had never been a costs agreement entered into with Paola Holdings. Hence he submitted that if it was appropriate to focus upon the question of liability, Currabubula was liable to pay to Gadens, all of the costs for work done which benefited or advanced Currabubula's case and Currabubula would receive no discount merely because a second plaintiff had been joined at some point.
26 Mr Gleeson then referred to the letter from Mallesons of 30 September 1999. He pointed out that this was where the problem had emerged. I do not understand there to be any issue between the parties but that this was the first time when the matter was raised. As Mr Gleeson made plain, the Bank's solicitors for the first time sought to take the point that there existed a principle of taxation, that where a solicitor acted for two parties, one successful and one unsuccessful, only a proportion of the costs for the common work could be recovered. Mr Gleeson submitted and I certainly accept, that in fact it had never been put to the Court during the course of the costs argument, that the Bank would be seeking to apply such a principle when it came to taxation of a bill of costs. No such submissions had been put to the Court at that time. Nor had it been put that any costs order made in favour of Currabubula, would effectively be halved in respect of common work when it came to taxation. Mr Gleeson's submission is that in circumstances where the parties were clearly addressing the Court during the costs hearing, on how Paola Holdings would be treated, it was incumbent upon the Bank, if it wished to assert this supposed principle, to raise the matter then.
27 Mr Gleeson's next submission was that it followed from what the Court had intended to do as expressed in the reasons for judgment, that had any such rule of thumb been advanced, the Court would have rejected its application in this case. Mr Gleeson submitted that there were three reasons why the Court would have so rejected any such rule of thumb as applicable. These were as follows: