"But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues".
In the present case it is true that if one took a head count of the causes of action pleaded in the statement of claim, the applicant failed on more than he succeeded, and by some margin. Nevertheless, the applicant succeeded in his primary aim viz. to challenge the operation of r.2:38:1 of the rules of the Cricket Council in so far as the rule operated to preclude him from playing district cricket by reason of his participation in the South African tours.
...
In my view it would be unsatisfactory to attempt to apportion issues and leave the fixing of costs of those issues to the taxing officer. That would impose a very great burden on him and upon the parties' legal representatives. I approach the matter on the basis that the applicant succeeded substantially in what he set out to achieve through his application. He failed on some issues in circumstances where, not only should he not have the costs of those issues, but there should be some compensation to the respondents for the time taken in meeting those issues both prior to and at the hearing.
In my view justice would be served by awarding the applicant 75% of his costs...
12 The respondents contended that it could not be said that a "headcount" of the claims could not be outlined. It was submitted that the judgment dealt separately in relation to each of the claims advanced and that they were relatively separate and distinct. The respondents further contended they were successful in defeating eight, of what they suggest were ultimately 11 claims brought by the applicants. On one view, the primary issue upon which the applicants succeeded, was the repayment of $85,000 to Ms Deng by Dengs Investments Pty Limited ("the second respondent"). This claim was not made in the first amended summons. It was the applicants' contention that it was not until Ms Deng's bank statements were put to her in cross-examination, that she conceded that money had been transferred out of the Dengs Investments Pty Limited bank account into her own bank account. This led to an amendment of the applicants' claim. See [196] - [206] in Lieu v Deng (No 4).
13 The respondents pointed to a judgment of Justice Mansfield in Australian Prudential Regulation Authority v Holloway (2000) 35 ACSR 276, as dealing with similar considerations of costs to those that arise in this case. Justice Mansfield observed as follows:
43 In exercising my discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth), I have had regard to the general rule that, in the normal course, a successful party should have its costs of the application: Ritter v Godfrey [1920] 2 KB 47; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136.
44 In this instance, there are a number of matters which justify some departure from that general rule. APRA's contention recognises that some of them may be relevant. The first consideration is that APRA succeeded in establishing contraventions of s 85 of the Act in eighteen only of the thirty-two transactions which it alleged. The second consideration is that, in respect of the contraventions alleged, APRA contended unsuccessfully that s 85 could be contravened by the making of a scheme which results, or is likely to result, in an artificial reduction in the market value ratio of the in-house assets of a regulated superannuation fund and where that artificial reduction was in fact in the historical cost ratio of a regulated superannuation fund, so as to avoid the application of one or more of ss 76-80 of the Act. I found that the `artificial reduction' referred to in s 85(1)(b) of the Act was relevantly confined to an artificial reduction in the market value ratio of the in-house assets of a regulated superannuation fund contrary to s 83 of the Act. Sections 81 and 82, on their terms, did not apply at the time of the impugned conduct.
45 Those two features, in my view, provide some reason to depart from the general rule as to costs: see eg Forster v Farquhar [1893] 1 QB 564. It is not necessarily the case that a successful applicant should be deprived of some or all the costs of the proceeding, or be ordered to pay some costs, where the claim fails in part of where the applicant fails on a particular issue or issues. It is always necessary to consider the justice of the particular circumstances: see Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 42 FCR 213; 28 ALR 201 at 206-210 per Fisher J; Cretazzo v Lombardi (1975) 13 SASR 4 at 11-12 per Bray CJ; Cromer v Harry Rickards' Tivoli Theatres Ltd [1921] 13 SASR 325 at 335-338 per Angas Parsons J. Here, the thirty-two contraventions needed to be separately addressed. Ms Tonks' evidence dealt with each of them individually, and in detail, and separate witnesses dealt with each of the transactions although there was some overlap in the case of two or more transactions involving the one regulated superannuation fund. In my judgment, those unsuccessful claims by APRA can and should, in fairness, be treated separately for the purposes of the costs of the proceedings.
14 His Honour concluded that the respondents should pay to the applicants 35 per cent of its costs of and incidental to the application. A similar apportionment was considered by the full Federal Court in Dodds Family Investments Pty Limited v Lane Industries Pty Limited (1993) 26 IPR 261 at 272 which I shall return to later in these reasons.
15 A further issue considered by Justice Mansfield in Holloway was that the respondents submitted that the applicants were only successful due to an amendment to its claim made relatively late in the proceedings: see [48] - [50]. In that matter, His Honour found that there was no discernable prolongation of the trial, and the evidence about the nature of the transactions proved to be essentially the same in any event, but nevertheless found at the conclusion at [50]:
... That factor can be reflected in the weight I give to the failure of APRA to succeed on fourteen of the thirty-two transactions alleged.
16 The respondents point to the applicants' succeeding in its claim for the repayment of $85,000, such claim only being made during the proceedings. I have already set out the circumstances surrounding how this claim came to be made. In my view, it did not lead to use the words of Justice Mansfield to any discernable prolongation of the trial.
17 The applicants, on the other hand, contend that they sought relief from the general unfairness of the arrangements or contracts that allowed the first respondent to effectively do as she pleased with the financial affairs of the second respondent to the detriment of the applicants' interests and that the successful claims achieved this objective conclusively. In Glen King Marine & Trading Services v Owners of the Ship Armada Ternak (unreported, Federal Court of Australia, Spender J, QG 82 of 1997 and QG 152 of 1997, 17 June 1998). Spender J observed:
In Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169, Burchett J had to consider the case of a successful defendant who had failed in respect of some issues. His Honour said:
'It does not necessarily follow that the costs orders otherwise appropriate should be affected. A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earth works at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer end costs. Ultimately the question is one of discretion and judgment.'
Heerey J in Henderson v Amadio (Supra) at 9, offered the view:
"In my respectful opinion, the same reasoning applies to an unsuccessful plaintiff who fails on some issues. To extend Burchett J's military meaphor, the plaintiff is not to be regarded as culpable because he attacked at points of the defendant's fortifications other than the place where success came. He is not to be forced, at his peril, in respect of costs, to abandon every flank attack."
18 The applicants submitted that all 11 "attacks" had a common objective which was the removal of the unfairness of the contracts. The three successful claims effectively resolved the core issue raised in the majority of the claims. The applicants submitted the respondents' "fortifications", namely, the unfairness of the contracts, were destroyed by the orders made in the judgment for the three successful claims.
19 Before determining this issue, I refer to a judgment cited by the respondents as favouring the approach urged by them. In Dodds Family Investments Pty Limited v Lang Industries Pty Limited, the Full Federal Court said at 271 - 272:
The propositions enunciated in [Hughes] case are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case - Cretazzo v. Lombardi (1975) 13 SASR 4 at 12. In Trade Practices Commission v. Nicholas Enterprises Pty Ltd (1979) 42 FLR 213; 28 ALR 201, Fisher J regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances. Nevertheless he accepted that where a considerable part of the trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party. Generally speaking, and notwithstanding the considerations referred to by Toohey J and the other authorities mentioned above, the demands of the community for greater economy and efficiency in the conduct of litigation may properly be reflected in a qualification of the presumption that a successful party is entitled to all its costs...
20 It is also necessary to consider the Calderbank offers prior to exercising my discretion to determine the question of costs. The difficulty I have with these offers is that first, each offer was less than what the applicants ultimately received in the judgment and secondly, each offer contained a term negativing costs. I accept that at the time each offer was made, the summons as it existed did not include the claim relating to $85,000. This is unsurprising as the applicants were not aware such a payment had been made by Dengs Investments Pty Limited to Ms Deng as the respondents had consistently declined to provide the applicants with the financial records of the respondents. I do not therefore, in the circumstances, find that the respondents can rely on these offers.
21 I find in the circumstances of this matter, particularly bearing in mind that the primary issue upon which the applicants succeeded was the repayment of $85,000 to Ms Deng which arose on the sixth day of the trial that the presumption that a successful party is entitled to all its costs should be qualified in this matter. The fact of the matter is that the respondents have been successful in eight out of eleven claims but not overall. However against this is the fact that the evidence in the matter was not led separately in respect of each of the claims which distinguishes this case from Holloway.
22 Recently a majority of the Full Bench (Walton J Vice President and Schmidt J, Wright J President dissenting) in Powerlan Ltd v Squires (No 2) (2007) 162 IR 389 stated at [17]:
As the respondent first submitted, the appellants succeeded on some aspects of the appeal and he succeeded on others. Given the outcome achieved by the parties on appeal, it must be accepted that there should be a departure from the ordinary rule, that costs should follow the event and that the departure should be that originally proposed by the respondent, namely an order that each party should bear its own costs of the appeal. That reflects a fair disposition of the costs, given the results of the appeal.