Delpachitra v University of Technology Sydney

1. The applicant pay the respondent's costs of and incidental to its Interlocutory application dated 30 March 2021 on a party and party basis to be assessed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 On 25 January 2022, I made an order in this proceeding that the further amended Statement of claim dated 19 March 2021 (the FASOC) be struck out. The respondent made an application that the applicant pay the respondent's costs of and associated with the Interlocutory application dated 30 March 2021 on an indemnity basis. The applicant does not dispute that the respondent is entitled to an order for costs, but he submits that those costs should be assessed on a party and party basis. Therefore, the issue is whether this is an appropriate case for an order for indemnity costs. In my reasons for making the order that the FASOC be struck out, I referred to the history of the proceeding leading up to the application (Delpachitra v University of Technology Sydney [2022] FCA 22 at [11]-[15]) and then noted that the context was that the applicant had already had three opportunities to address the appropriate pleading of his case. I also noted the respondent's submission that with the addition of the two schedules of proposed amendments, the applicant had now had five opportunities to address the appropriate pleading of his case. 2 For the purposes of this application, I have again considered Mr Tim McDonald's affidavit sworn on 30 March 2021 and the correspondence attached to that affidavit. I have also considered the commentary in the Practice Book (Practice & Procedure High Court and Federal Court of Australia (LexisNexis, subscription service)) relating to the circumstances in which it is appropriate to make an order for indemnity costs (see at pp 47,607-47,609 (update 286)). I have also considered the oft-cited case of Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 (Colgate-Palmolive) and Sheppard J's statement of principles and guidelines (at 232-234). I am aware that since the decision in Colgate-Palmolive, there have been many cases in which the issue of whether indemnity costs should be awarded has been considered. I also take into account the case management principles which are referred to in Part VB of the Federal Court of Australia Act 1976 (Cth). 3 The applicant has made a number of attempts to properly plead his case. As I have said in my previous reasons, I consider that the applicant could plead an arguable case. He has had difficulty in doing so. His lack of success is a reason for requiring him as the unsuccessful party to pay the costs. This case does not fall within one of the well-established categories for an award of indemnity costs. I note that the categories of cases in which an order for indemnity costs may be made are not closed. Nevertheless, I am unable to detect a special or unusual factor of sufficient weight in this case to found an order for indemnity costs. I decline to make an order for indemnity costs. 4 I will make an order that the applicant pay the respondent's costs of and incidental to its Interlocutory application dated 30 March 2021 on a party and party basis to be assessed in default of agreement. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.