APPLICATION OF THE RULES AND PRINCIPLES
10 In this case, the parties have chosen to litigate, in a separate hearing, the Separate Questions. Although the principal proceeding has not concluded, judgment on the Separate Questions can be regarded as having dealt with discrete issues and determining substantive rights.
11 CUB has been entirely successful in relation to the Separate Questions. CUB would necessarily have incurred substantial costs in connection with the determination of the Separate Questions. It appears unlikely that the proceeding will be entirely resolved before late 2014. The proceeding is not presently listed for trial; and there remain substantial interlocutory steps to be completed.
12 In the circumstances, it would be contrary to the interests of justice to deny CUB the opportunity to have its costs taxed, without delay.
13 Of course, if Cash's succeed in the future part of the litigation, it might expect to obtain the benefit of a costs order. The possibility that Cash's may succeed on some aspects of the litigation in the future, however, does not warrant deferring the making of a costs order or declining to make the order in the form CUB now seeks.
14 Cash's argued that the conduct of CUB had been such that "its shortcomings, even if not characterized [sic] as misconduct, has been responsible for and has caused the litigation of the issues on the separate questions and constitutes special reason why it should not receive its costs". By way of argument, I was referred to a number of authorities where special circumstances had resulted in a court withholding the payment of costs to a successful defendant, or plaintiff. Broadly speaking, the special circumstances warranting such an exercise of discretion are, as Mahoney J described in Jamal v Secretary, Department of Health & Anor (1988) 14 NSWLR 252 at 271:
…of two general kinds. First, if the costs of the appeal have been increased by an issue on which the successful parties failed and those costs are of sufficient significance … And, secondly … if the conduct of the successful respondent may have justified the [action] being brought … or his conduct in relation to the matter may be discreditable to an extent warranting his being deprived on costs.
15 There are no circumstances of the first kind relevant to this case. On each of the significant issues within the Separate Questions proceeding, CUB was successful. Further, there is no argument before me, and I would not accept, that CUB's conduct of the proceeding itself was discreditable or "occasioned unnecessary litigation and expense": Ritter v Godfrey [1920] 2 KB 47 ('Ritter') at 56 and 60 (Atkin LJ); IFTC Broking Services Ltd v Commissioner of Taxation [2010] FCAFC 22 at [17] (Stone, Edmonds and Jagott JJ); see also, Sunday Times Newspaper Company Ltd v McIntosh & Ors (1933) 33 NSWSR 371 at 374.
16 Finally, I do not accept that CUB's conduct in relation to the patents and designs applications "justified" the cross-claim (which informed the Separate Questions), in the sense that Cash's became entitled to its costs in any event, or that CUB's conduct made it "responsible" for the Separate Questions proceeding, in the same sense. The cases of this nature centre on circumstances where a successful party has, by their misconduct prior to litigation, "brought the whole thing on" (Hartnett v Vise and Wife (1880) 5 Ex D 307 at 308) or where their conduct has otherwise substantially induced the litigation (Ritter at 53 (Lord Sterndale MR)). Examples in the cases to which I was referred include conduct giving rise to a reasonable suspicion that a man had committed adultery (Trenerry v Trenerry [1966] 2 NSWR 221), or alternatively, to circumstances in which a liquidator was said to have been "forced" in his duty as liquidator to recommence litigation on behalf of a company because the successful respondent compromised the accuracy of the company's books (Donald Campbell and Company Ltd v Pollak [1927] AC 732 at 739).
17 What is reinforced in every case, however, is that that the question is ultimately one left to the exercise of judicial discretion, taking into account all the circumstances of the litigation and its relevant antecedents. The current case is not, in all the circumstances, one which requires me to respond to CUB's conduct in the manner urged by Cash's. The conduct of CUB at issue in the Separate Questions is not misconduct, nor could it be said to have induced the Separate Questions litigation in the required way.