The costs of the other applicants
57 The parties made submissions on this matter following the Full Court's judgment but before the High Court appeal. However, as I have earlier found, despite the High Court's different approach to the matter, nothing occurred there as should affect the position as it was before the final appeal. The GIO seeks an order that the applicants other than Mrs Williamson should pay its costs on an indemnity basis. It presumably seeks an alternative order for party/party costs on the basis that costs "follow the event".
58 I noted earlier that after the first instance hearing, and before the appellate outcome of this litigation had become known, I awarded costs to the applicants including some on an indemnity basis. In that judgment, I examined in some detail the issues affecting the costs of the first instance hearing including negotiations for settlement in the context of the legal principles applicable to indemnity costs. As the judgment reveals at 138, the focus at that time was on the GIO's refusal to settle on the basis of the applicants' discontinuance of the action with all parties to pay their own costs and the applicants to release the GIO from any inhibition on its power to increase interest rates in the future. The GIO now argues that it was unreasonable of the applicants to refuse its previous offer in April/May 1994 to settle on a more generous basis so far as they were concerned : see the facts outlined in the judgment on costs at 137.
59 The GIO says that the offer was significantly more favourable to the applicants than the outcome actually acheived and that in accordance with the principles set forth in that judgment and the authorities there cited, the indemnity costs order now sought should date from May 1994. The High Court's decision reinforces that argument because that Court's decision arose from the applicants' concession to it that at the time they took the loans, they could not have obtained cheaper finance elsewhere, and that they were not arguing that they would not have borrowed at all if the loan facility offered to them by the GIO had been as was found to have been represented.
60 The applicants opposed the GIO's application for indemnity or, it seems, any costs and argued to retain the original costs orders. Alternatively they asked for an order that the GIO pay their costs at first instance on a party/party basis.
61 It is difficult to recall a case in which parties have been so diametrically confrontational on so many issues raised. I speak not of issues, whether of fact or law, at the heart of the case but of almost every detail imaginable. The record bears testimony to the sad history of this litigation which at the end, even allowing for other borrowers not actually before the Court, actually involved quite a small sum of money. The orders of 1 May 1996 in respect of the applicants and represented parties only totalled $96,944.17.
62 Throughout the pre-trial process, there were almost endless "spats" between the parties for which both sides share responsibility. By the time of the hearing in June 1995, an action commenced two years earlier had become a fifth amended application and statement of claim filed on 26 April 1995, there were at least two interlocutory motions requiring judgments on 29 November 1994 and 21 April 1995, and numerous other "bar table" confrontations on time-consuming issues including relatively minor pleading matters that would have been dealt with out of court between parties who had retained a sense of proportion and balance and had shown some semblance of their responsibilities not to use a publicly-funded court as a boxing ring.
63 Just to give one example on each side - the applicants commenced the case with some concept that several thousand borrowers who had taken the loan facility in question might be involved. They later reduced it to ten and finished with a group of four (two of whom consisted of two joint borrowers) plus the other three individual applicants in the current proceedings. This process was lengthy and litigiously troublesome.
64 On the other side, these loans were made at a time when the GIO was being corporatised and privatised. It was difficult to ascertain which of the GIO companies took over responsibility for these loans and the GIO as a group was at best unhelpful, even evasive, in the ascertainment of the correct position. Eventually the fourth respondent was joined by consent but not until much litigious time and effort had been expended.
65 In fact, hardly a single matter of substance was agreed without a fight, including costs. The interlocutory judgments and the earlier judgment on costs bear further witness to this forensic picnic, at the end of which the applicants' case that the original interest margin was fixed for the whole period of their loans, and the GIO's case that there was no deception of its customers, both failed.
66 Nevertheless, the GIO argued that it was "entirely successful". This contention exaggerates the true position. Certainly it avoided an order for damages but it was found to have seriously deceived about 3000 borrowers. At the time it did so with at least some of them, it was a government-owned institution. Moreover, in order to establish its entitlement not to have to compensate such a large number of misled consumers even minimally, it had to run the gamut of having ten judges express widely differing views on the applicable legal principles, not to mention social factors, involved in cases of this kind.
67 For their parts, the applicants pointed to the importance to the community of consumer protection, to the vulnerability of ordinary citizens to the depradations of large corporations, and to the immense inequality in the resources available to place checks on their activities. As the cases have continually recognised, trade practices and fair trading legislation is important to the maintenance of a fair social order in Australia, and the protection of the community from unfair and deceptive trade and commercial practices is a legitimate and desirable goal of our society. However, court cases are not always the best place to fight such epic battles for the supremacy of right.
68 Having regard to the settlement discussions in 1994 and 1995 detailed in the previous costs judgment, if not to the damages actually awarded on 1 May 1996, to say that the legal costs positively dwarf what was actually in issue in these proceedings is to be too polite. The courts will not lightly lend themselves to a perpetuation of this position, even as the epilogue to this saga of indulgence. This Court is entitled, in the public interest if in no other, to look to parties and their lawyers to use its time more productively than has occurred here, and is entitled, even obligated, to use its powers in relation to costs to express disapproval of the conduct of the parties in particular cases.
69 This situation does not bespeak an occasion for another studious consideration of the authorities on the issue of costs. The Court may decline to order costs against an unsuccessful party where the litigation involved questions of the public interest: National Mutual Life Association of Australia Ltd v Windsor [1991] 28 FCR 214 at 229. It may make no order for costs in favour of a successful party and may, albeit in limited circumstances and rarely, even order costs against a successful party: Austin v Ansett Transport Industries (Operations) Pty Ltd (Burchett J unreported 26 August 1993); Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 at 130-131. It is also permissible to share the costs between the parties in appropriate circumstances, especially where the parties have succeeded on some issues and failed on others : Cretazzo v Lombardi (1975) 13 SASR 4; Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127; 79 ALR 685; Schindler Lifts (Aust) Pty Limited v Debelak (1989) 89 ALR 272; 15 IPR 129; Latoudis v Cacy [1990] 170 CLR 534; Inn Leisure Industries Pty Limited (provisional liquidator appointed) v D F McCloy Pty Limited (No. 2) (1991) 28 FCR 172. Moreover, the regime for representative proceedings (class actions) under Part IVA of the Federal Court Act gives the Court a wide scope "to ensure that justice is done in the proceedings": ss 33ZF and 33ZJ.
70 It would, in my opinion, be quite unjust in this case to award all the costs of the proceedings at first instance exclusively to one party or the other. On the other hand, it would not now be possible, six years after the case began, to make an equitable division of the costs incurred in the pre-trial and trial proceedings. The case involved matters of clear public importance. Despite the ultimate success of its resistance to the relief sought, the GIO contributed to the length, complexity and cost of the process, sometimes quite unreasonably, and lost its major fight to be absolved of the allegation that it misled and deceived all these customers. Indeed, its marketing manager at the relevant time gave evidence at the trial that if he had been asked to provide written confirmation that the margin was fixed, he would have done so. His authority in this respect was not challenged.
71 On the other hand, although the applicants won a partial victory on liability, they failed to establish a contractual or other obligation to maintain the initial rate throughout the facility and obtained no compensatory order for the deception of which they were victims. They have also been ordered to pay the costs of the two appeals.
72 It is my view that the only just order in the circumstances is that all the parties, except Mrs Williamson, pay their own costs of the trial, including all costs reserved at earlier stages in the case.
I certify that the preceding seventy- two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.