National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass

14 The applicants submit that in order to do justice in the case, the applicants ought to be awarded all of their costs and, if any discounting is to be performed, 'the applicants should not be awarded against' the third respondent 'any less than 90% of their costs of the proceedings'. 15 The respondents, on the other hand, submit that costs orders should be made as follows: '(a) First applicant pay the respondents' costs of the proceedings on an indemnity basis. (b) Applicants pay the second respondent's costs of the proceedings on an indemnity basis. (c) Applicants pay the respondents' costs thrown away by reason of the amendment to the pleadings on: i. 5 May 2006; ii. 21 July 2006; iii. 9 August 2006; iv. 25 August 2006; and v. 27 October 2006. (d) First applicant pay the respondents' costs of the Trade Practices/Fair Trading Act claim on an indemnity basis.' 16 Orders as to costs have been made from time to time throughout the course of these proceedings and, in my opinion, it would be inappropriate to disturb those orders. 17 The costs thrown away by certain amendments to the pleadings have been expressly reserved during the course of the proceedings. In particular I note that on 9 August 2006, when leave was granted to the applicants to file a Further Amended Application and a Further Amended Statement of Claim on that day, the following order was made in respect of costs: '10. The costs thrown away by the Applicants' amendment to the Statement of Claim filed 21 July 2006 and any amendment to the Application or Statement of Claim pursuant to leave granted today be reserved.' 18 A similar order was made on 22 August 2006 when leave was granted to the applicants to file and serve a Second Further Amended Application and a Second Further Amended Statement of Claim on or before 25 August 2006. An order in respect of costs was made in the following terms: 3. … the costs thrown away by the foreshadowed amendments be reserved.' 19 As it transpires the original Application in this matter was filed on 21 December 2005. An Amended Application was filed on 30 May 2006, a Further Amended Application was filed on 9 August 2006, a Second Further Amended Application was filed on 25 August 2006 and a Third Further Amended Application was filed on 27 October 2006. 20 The original Statement of Claim was filed on 21 December 2005. An Amended Statement of Claim was filed on 21 July 2006, a Further Amended Statement of Claim was filed on 9 August 2006, a Second Further Amended Statement of Claim was filed on 25 August 2006 and a Third Further Amended Statement of Claim was filed on 27 October 2006. 21 In my opinion it would be unjust to require the respondents to bear their costs of dealing with all of the different iterations of the Application and Statement of Claim. I would observe that the Amended Statement of Claim filed 21 July 2006 added claims in respect of Appendix C and substantially expanded the applicants' claims in respect of the representations said to have been made and the imputations said to have been conveyed by the publication of the documents. 22 The Second Further Amended Statement of Claim filed 25 August 2006 introduced a number of amendments and involved a significant repleading of the imputations said to be conveyed by the publication of the three documents. In addition, the Second Further Amended Application introduced a considerable amount of new detail by way of particulars in respect of the applicants' claims for aggravated and exemplary damages. 23 It seems to me that, given the nature and extent of the various amendments and the outcomes in respect of the issues to which the amendments related, the proper order as to costs of the various amendments would be one which would require the applicants to pay the costs of the respondents thrown away by the filing of the Amended Statement of Claim on 21 July 2006 and, in addition, the costs thrown away by the filing of the Second Further Amended Application and the Second Further Amended Statement of Claim on 25 August 2006. 24 To enable the respective submissions of the parties in relation to costs to be fully understood it is necessary to have regard to a chain of correspondence in which a series of offers of settlement were made, which, generally speaking, were expressed to be without prejudice except as to costs and would answer the description of being Calderbank letters (see Calderbank v Calderbank [1975] 3 All ER 333). 25 None of the letters, in my opinion, answers the description of being an offer of compromise within the meaning of Order 23 of the Federal Court Rules (see in particular Order 23 rules 2, 3 and 5). Hence the consequences for which Order 23 rule 11(5) provides would not be available. 26 Relevantly, all of the offers and counter-offers in these proceedings were made by or to the solicitors for the applicants, Robert Yip & Co ('Yip') and to or by the solicitors, then on the record, for the respondents, namely Whites Lawyers ('Whites'). The two exceptions were the very first letter in the chain of correspondence which was sent by Yip to the third respondent and the last which was sent by Yip to the second respondent. The chain of correspondence relevantly included: 8 December 2005 letter Yip to third respondent: 'We are instructed to give you this single opportunity to undertake as follows:

1. To apologise … 2. To pay our clients' reasonable legal costs to the point of your undertaking being effected.
2. To pay our clients, in lieu of damages, the sum of $250,000.' 20 February 2006 letter Whites to Yip: '… after the return date on 23 February 2006 we will be submitting to you an application … that the proceedings against Mr Jack Moller [the second respondent] be withdrawn.' 17 August 2006 letter Whites to Yip: '… our client has instructed us to make the following offer of settlement:
3. Each party discontinue their proceedings.
4. The Applicants pay the Respondents costs. This offer will remain open until 12 noon on Friday 18 August 2006. … If the offer is not accepted we will tender this letter on any determination of costs in the proceedings.' 18 August 2006 letter Yip to Whites: 'This is a Calderbank offer. The applicants will settle the matter on the following terms:
5. Verdict for the Applicants on the application;
6. Cross-claim be dismissed; 3. Judgment for the Applicants in the sum of $250,000.00, plus costs as agreed or assessed; and 4. Respondents to execute a deed restraining them from making any adverse publication to any person about any of the Applicants. This Offer will remain open to be accepted at any time prior to 5 p.m., 18 August 2006. We reserve our client's right to tender this letter on the question of costs on a full indemnity basis, in accordance with the principles enunciated in Calderbank-v-Calderbank, in the event your client fails to accept this Offer within the period herein stipulated.' 14 November 2006 letter Whites to Yip: 'We are instructed to make an offer to settle this matter on the following terms:-
7. Judgment for the Applicants against the Third Respondent. 2. Third Respondent agrees to pay the Plaintiff's costs of the proceedings as assessed (except where previously reserved) (sic). 3. Applicants claim against the First and Second Respondents be dismissed with no order as to costs. 4. Parties to enter into a Deed of Settlement in relation to the above with the following additional provisions:- (a) The terms of the settlement are to remain confidential. (b) Without admission or (sic) liability Respondents to execute a deed restraining them from any adverse publication to any person about any of the Applicants. This is a Calderbank Offer and will remain open until 4.00pm on Thursday 16th November 2006. We reserve our rights to tender this letter on the question of costs on a full indemnity basis if your client fails to accept the offer.' 15 November 2006 letter Yip to Whites: 'Thank you for your letter faxed today containing a settlement offer. The fundamental shortcoming in that offer is that it includes no element of compensation for the defamation causes of action, and it is accordingly rejected. Our clients would be prepared to settle their action on the following basis:
8. Verdict for the applicants. 2. Judgment in the sum of $100,000 for each of the second and third applicants. 3. Applicants' costs to be paid in the sum agreed. 4. Payment of judgment sums and costs to be made within four weeks. 5. Respondents to execute a deed undertaking not to publish to any person, nor cause to be published to any person, in any form any statement or comment of and concerning the applicants or any of them which bears or may bear any adverse charge, allegation, imputation, inference or implication. … This offer remains open until close of business on Thursday 16 November 2006.' 17 November 2006 letter Whites to Yip: 'We invite you to reassess the matter and reconsider the offer previously made.' 20 November 2006 letter Yip to Whites: 'We refer to your settlement offer of 14 November 2006, and seek the following information by way of clarification: does your client agree to the following settlement terms: 1. Verdict for the applicants against the third respondent; 2. Judgment for the respondents (sic) in the sum assessed by this Honourable Court upon hearing the applicants' evidence on damages; 3. Third respondent to pay the applicants' costs of the matter, as agreed or assessed; 4. The applicants' claim against the first and second respondents be dismissed or discontinued with no order as to costs; 5. All respondents undertake to publish no further matter of and concerning any of the applicants without their prior written permission; 6. The Court to note that the parties agree that these terms of settlement shall not be disclosed. Please note that this is not a counter-offer. This is an attempt to obtain clarity as to the terms and as to the effect of the terms offered by your clients.' 27 November 2006 letter Whites to Yip: 'In relation to the offer of settlement our instructions are to withdraw the offer.' 28 November 2006 letter Whites to Yip (not received by Yip until 12.05 pm on 28 November 2006): '… We are instructed to make the following offer of settlement of part of the claim against the First and Second Respondents:- (a) Applicants claim against the First and Second Respondents be dismissed. (b) Each of the Applicants and the First and Second Respondents pay their own costs in relation to the claim against the First and Second Applicants (sic). (c) Terms to be confidential as between the Applicants and the First and Second Respondents. (d) Each of the Applicants and the First and Second Respondents sign a Deed of Release covering the mutual releases. This offer shall remain open until 5.00 pm today.' 30 November 2006 letter Yip to Whites: 'We refer to your letter faxed on the 28 November 2006 containing a settlement offer, which is rejected by our clients. Our clients would be prepared to settle their action on the following basis: 1. Verdict for the Applicants. 2. Judgment in the sum of $95,000 for each of the second and third applicants. 3. Applicants' costs to be paid in the sum agreed. 4. Payment of judgment sums and costs to be made within four weeks. 5. Respondents to exercise a deed undertaking not to publish to any person, nor cause to be published to any person, in any form any statement or comment of and concerning the applicants or any of them which bears or may bear any adverse charge, allegation, imputation, inference of (sic) implication. This offer remains open until close of business on Friday 1st December 2006. …' 27 On 14 December 2006 senior counsel for the applicants made an open offer in Court to settle or compromise the applicant's case against the second respondent. The offer was that the applicants would discontinue the proceedings against the second respondent on condition that he first made an apology and retraction in terms acceptable to the applicants in relation to his publication or participation in the publication of Appendices A and B to my earlier reasons. The open offer was made on condition that in addition to the apology, the second respondent would undertake to the Court not to repeat any of the allegations made against the applicants in the two page annexure to the 13 September facsimile or in the ATO letter in any form to any person. It was also conditioned upon each party bearing their own costs. The applicants' open offer was reformulated in a letter to the second respondent dated 14 December 2006. It relevantly provided: 'Today (14 December 2006) in your absence, the Applicants made an open offer in court to settle or compromise their claim against you. They further formulate that offer in the following terms:- They will seek the leave of the Court to discontinue the proceedings against yourself on the following conditions: 1. That you issue to them the apology appearing below [not reproduced]; 2. That you undertake to the Court never to publish any of the representations against the Respondents set out in paragraphs 7 and 8 or any of the imputations against them set out in paragraphs 14 and 15 of the Third Further Amended Statement of Claim, or representations or imputations to the same effect, at any time and in any manner or form; 3. That you and the Applicants bear your own costs of the proceedings. … This offer remains open until the close of business on 25 January 2007. If you reject it or fail to accept it within the time specified, our clients will proceed with the relief they seek against you.' 28 I am unable to discern from the terms of the offers made and recounted above any particular offer which could be seen as a stand alone offer where the party making the offer enjoyed an outcome which equated or was more favourable to that party than that which had been offered. It does not seem to me that this matter provides an occasion for a Calderbank approach to be adopted. 29 I consider the matter to fall within the principles enunciated by Young J in AWB Ltd v Cole (No 6) (2006) 235 ALR 307 at [10]-[17] where His Honour said: '[10] AWB sought an order that the respondents pay its costs of the proceedings, including any reserved costs. It argued that the applicant was the successful litigant in material respects. It submitted that, subject to the court's findings concerning waiver and the fraud exception, it had successfully proven that privilege prima facie attached to all but 25 of the documents over which it pressed its claim. It said that the costly and time-consuming part of the case was proof of the prima facie status of each document as one brought into existence for the dominant purpose of obtaining, or giving, legal advice. AWB also criticised the reasonableness of the Commonwealth's conduct in requiring that AWB prove its claim in respect of each and every document; it asserted that the soundness of many of the claims ought to have been apparent from the description of the documents in AWB's list of privileged documents. [11] These submissions take an exceedingly optimistic view of AWB's level of success in the proceedings. In fact, because of the court's findings concerning waiver and the fraud exception, AWB's privilege claims wholly failed in relation to approximately 321 of the documents that were in contest. In addition, on the first day of the hearing, AWB withdrew its claim for a declaration that privilege attached to about 24 documents relating to the Tigris transaction. Roughly one-half of the hearing time was devoted to the issues concerning waiver and the fraud exception. [12] AWB submitted that the circumstances do not warrant any departure from the usual approach that an applicant who achieves substantial success should have the costs of the proceedings. AWB relied in particular on the following passage from Cretazzo v Lombardi (1975) 13 SASR 4 (Cretazzo) where Jacobs J said at 16: 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 short, AWB submitted that it achieved substantial success and that it should have the costs of the proceeding, notwithstanding its failure on the issues of waiver and the fraud exception. [13] The Commonwealth submitted that AWB should pay its costs of the proceedings. It argued that success in this case cannot be measured purely in numerical terms; rather a judgement ought to be made as to which party has had substantial success in the case, having regard to the significance of the issues decided by the court in favour of one or other party. It added that a finding that privilege subsists in a large number of technical or peripheral documents cannot be weighed in the same scale. [14] The court's discretion to order costs under s 43 of the Federal Court Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-4 … As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-5 and 236 ; … [2001] FCA 1865 [11], [15]. Depending on the circumstances, it may be an appropriate exercise of the court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604 ; … and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) (2005) 225 ALR 569 ; [2005] FCA 1400 at [3]. Alternatively, the court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Assn (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172. [15] In many cases, these principles can only be applied sensibly by taking a broad view of the results of the case and the issues that were litigated. An allocation of costs in a case of mixed results can rarely if ever be done with mathematical precision: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272 per Gummow, French and Hill JJ. [16] Taking a broad and overall view of the outcome of this case, I consider that both AWB and the Commonwealth achieved a substantial measure of success. I cannot agree with AWB's submission that, in material respects, it was the successful litigant. The Commonwealth succeeded on a number of very important issues. It established that privilege did not attach to numerous documents that are likely to be material to the issues being investigated by the commission. AWB did not merely fail "along the way" to prove particular issues of fact and law which, in the end, did not prevent it achieving substantial success; rather, AWB lost some of the most substantial issues that were litigated. Those issues involved more than half of the hearing time occupied by this case. [17] In all the circumstances, I consider that the just and appropriate order is that there be no order as to the costs of the proceeding. The result will be that AWB and the Commonwealth must each bear its own costs.' 30 I do not believe that the Court should, in the circumstances of this case, attempt to undertake a minute by minute, hour by hour or day by day analysis of the issues which were addressed as the hearing progressed. It is evident from the summary set out above that the majority of the applicants' claims failed but, equally, even though the first applicant was totally unsuccessful, there were claims made by the second and third applicants in which they were successful. 31 Taking a broad and overall view of the outcome of the case, I consider that both the applicants and the respondents achieved a substantial measure of success. It is true that the first applicant was totally unsuccessful and that the second respondent was totally successful. However, it does not seem to me that, on the facts of this case, it would be appropriate to make orders dealing with the separate positions of those parties. A taxing officer would find it difficult in the extreme to differentiate between those costs referrable to the cases of the second and third applicants and the case of the first applicant on the one hand and to the case of the second respondent and the cases of the first and third respondents on the other hand. 32 I adhere to the tentative view which I expressed in my reasons for judgment of 26 October 2007, that there should be no order as to costs in relation to the proceedings generally. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Counsel for the Applicants: S M Littlemore QC and A A Henskens

Solicitors for the Applicants: Robert Yip & Co

The second respondent appeared in person up to and including 12 December 2006 and on the morning of 13 April 2007. He did not appear thereafter.

Dates of Hearing: 4, 5, 6, 7, 8, 11, 12, 13, 14 December 2006, 12, 13, 16, 17, 18, 19 and 20 April 2007

Date of Judgment: 23 November 2007