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[2021] VSC 547
General information, not legal advice.
Supreme Court of Victoria
2021-09-03
Connock J
Original judgment source is linked above.
COSTS - Strike out application - Stay application - Summary judgment application - General principles on costs - Exercise of discretion - Pragmatic approach - Impression and evaluation - Proportion of costs awarded - Indemnity costs sought in part - Chen v Chan [2009] VSCA 233 - Capitulation in part - Abandonment and alleged discontinuance of some claims - Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd & Ors [2021] VSC 310.
1 On 31 May 2021 I delivered detailed reasons addressing various applications by the defendants (defendants or Optus Entities) for orders staying or dismissing, alternatively giving summary judgment in respect of, or alternatively striking out, a number of claims made by the plaintiff (TeleChoice or plaintiff) against the defendants in this proceeding (Primary Reasons). These reasons should be read together with the Primary Reasons and they employ, without repeating in full, the defined terms used in the Primary Reasons.
2 In paragraph 224 of the Primary Reasons I required the parties to seek to agree a form of order to give effect to the conclusions reached and stated that if, after meaningful conferral, the parties could not reach agreement regarding the question of costs I would hear from the parties in relation to that issue. For reasons that are not currently known to the court, proposed agreed orders were not submitted by the parties until 31 July 2021, and orders were made by the court on 3 August 2021 (August Orders).
3 It was apparent from the parties' proposed orders that, whether or not meaningful conferral had in fact occurred between the parties in relation to costs,[1] no agreement had been reached. The August Orders set out a timetable for the filing and service of material and submissions in relation to the question of costs and this process was completed when TeleChoice late filed its reply submissions on 24 August 2021.
4 In response to an email enquiry from the court, by 27 August 2021 the parties had each confirmed that they consented to the question of costs being dealt with on the papers. It is this issue that is dealt with in these reasons.
5 For the reasons that follow I have concluded that TeleChoice should pay, on a standard basis, 75% of the Optus Entities' costs of and incidental to the defendants' applications, and the defendants' costs thrown away by reason of TeleChoice no longer pursuing the claims referred to in paragraph 66(b) of these reasons.
6 The relevant background need only be briefly referred to as it is set out in, and apparent from, the Primary Reasons.
7 It is apparent from the Procedural Chronology comprising Attachment 1 to the Primary Reasons and to which I refer, that the applications had a somewhat involved and complex procedural history. This included certain issues the subject of the applications initially being agitated by way of a summons filed on 31 July 2020, which was amended and further amended on 6 and 25 August 2020 (First Summons).
8 The First Summons was heard in part on 23 November 2020. It became apparent during that hearing that it would not and could not be completed in one day and that, in any event, each of the Optus Entities and TeleChoice needed to give further consideration to the issues raised as well as TeleChoice's late notice regarding its proposed cross-examination of the defendants' witness, Mr Wong. Shortly after the luncheon adjournment that day the court was informed, among other things, that having regard to observations made during the morning of the hearing and other matters raised by the Optus Entities, TeleChoice wanted an opportunity to further reflect on the position and revise the Second Further Amended Statement of Claim (Second FASOC). This was considered by both parties to be an appropriate course, which it was - recognising also that neither junior nor senior counsel appearing on behalf of TeleChoice were the original authors of the defective statement of claim.
9 That being so, and mindful of the court's and the parties' obligations under the Civil Procedure Act 2010 (Vic) (CPA), the further hearing of the First Summons was adjourned and a timetable was set for a regime directed at: exposing for TeleChoice all of the concerns raised with its Second FASOC; providing an opportunity for TeleChoice to provide a proposed revised pleading; allowing for the Optus Entities to identify any remaining concerns with the proposed revised claim; and providing an opportunity for TeleChoice to respond before any further hearing.
10 Although there was said to have been some narrowing of the issues through this process, the parties remained poles apart regarding the adequacy or otherwise of the claims the subject of the proposed third further amended statement of claim. Ultimately this process resulted in the parties agreeing that leave should be granted to TeleChoice to file and serve the Third FASOC,[2] subject to the Optus Entities' right to continue to pursue such summary judgment, strike out, or other applications as they wished in relation to the revised pleading.
11 What was contemplated at that time was that the Optus Entities would amend the First Summons so as to address the Third FASOC in the light of the outcome of the court ordered regime between the parties that had preceded the service of the Third FASOC. Cognisant of the increasing possibility of confusion and complexities if the First Summons was further amended, and with the aim of increasing clarity, the court directed that rather than the First Summons being further amended, a fresh second summons should be filed, which is what occurred by way of the Optus Entities' summons filed 1 March 2021 (Second Summons). That summons had material overlap with applications raised in the First Summons, which was unsurprising given that many of the claims the subject of the Optus Entities' attack remained in the Third FASOC.
12 The applications the subject of the Primary Reasons were summarised in the table set out in paragraph 8 of the Primary Reasons, which had been drawn from the Optus Entities' written submissions and was in the following form:
An order that the plaintiff provide further and better particulars of the references in the 2008 Master Agreement and the 2008 Master Dealer Agreement referred to in this paragraph.
An order pursuant to r 23.02 that these paragraphs and their particulars be struck out on the basis that they may prejudice, embarrass or delay the fair trial of the proceeding.
13 Each of the applications was addressed in the Primary Reasons and the conclusions reached were summarised in paragraph 223 as follows:
223 The defendants' application has been successful in large part. In summary:
(a) The defendants' application for orders staying, dismissing, or giving summary judgment in respect of, the claims the subject of paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 of the Third FASOC should be refused.
(b) The defendants' alternative application to strike out the claims the subject of paragraphs 12, 16, 19, 29, 30, 31, 32, 33, 34 and 36 largely succeeds. At this point the particulars to paragraph 16, including 'Annexure A' and 'Sheet B', and to paragraphs 19, 30, 31, 33, 34 and 36, should be struck out.
(c) It is not necessary to require further particulars of paragraph 46 to be provided and no order to that effect will be made.
(d) Given the concessions properly made by TeleChoice:
(i) Paragraph (d) of the particulars to paragraph 49 should be struck out.
(ii) The claims relating to dealer codes 00037, 00057, 00077, 00097, 39425, 00017, 00067, 00087 and 14121 in the particulars to paragraph 49 should be struck out.
(iii) No order is now sought, or should be made in any event, staying or giving judgment in respect of the remaining claims in the particulars to paragraph 49 regarding the Remaining Changed Codes, being dealer codes TM300, TM350, TM360, TM900, 40434 and 40831.[3]
(iv) The claims in the particulars to paragraph 49 relating to the Remaining Changed Codes should not be struck out at this point.
(v) TeleChoice should be directed to provide a schedule of proper particulars of the customers the subject of the Remaining Changed Codes that a claim is being made in respect of and that it is currently able to identify, including such of the 203 additional customers earlier referred to in respect of whom a claim is sought to be made.
(vi) Following the completion of such discovery or related processes as are agreed or directed, TeleChoice should be directed to provide an updated schedule of further particulars to paragraph 49 giving proper particulars of any additional customers in respect of whom a claim is made regarding the Remaining Changed Codes.
(vii) The reference to expert reports in the particulars to paragraph 49 should be struck out.
(e) Paragraphs 53A(b) and (c) should not be struck out. TeleChoice should be directed to provide further and better particulars of paragraph 53A(b) in the manner referred to in these reasons.
(f) Given the concessions properly made by TeleChoice, paragraphs 56, 57, 58, 59, 60, 61, 65 (in part), 66 and 67 should be struck out. This is without prejudice to TeleChoice's right to seek leave to further amend the Third FASOC so as to include properly pleaded claims of the character referred to in these paragraphs.
(g) Paragraphs 117 to 124 should be struck out. This is without prejudice to TeleChoice's right to seek leave to further amend the Third FASOC so as to include properly pleaded claims of the character referred to in these paragraphs.
(h) Any consequential amendments to the Third FASOC (including the prayer for relief) should be made to take into account the issues addressed and conclusions reached in these reasons.
14 The August Order giving effect to the conclusions reached was largely in the form agreed between the parties and was in the following terms:
Defendants' strikeout application
1. The particulars to paragraphs 16 (including Annexure A and Sheet B), 19, 30, 31, 33, 34 and 36 of the plaintiff's Third Further Amended Statement of Claim (Third FASOC) be struck out, without prejudice to the plaintiff's right to seek leave to file revised particulars, or to seek leave to amend its pleading in respect of those paragraphs, in accordance with paragraphs 10 to 14 below.
2. Paragraph (d), the references to dealer codes 00017, 00037, 00057, 00067, 00077, 00087, 00097, 14121 and 39425, and the words "and the exchange of expert reports" in the particulars to paragraph 49 of the TFASOC be struck out.
3. Paragraphs 56, 57, 58, 59, 60, 61, 65 (in part, being all of the words after "penalty" in that paragraph), 66 and 67 of the TFASOC be struck out, without prejudice to the plaintiff's right to seek leave to amend its pleading in respect of the allegations in those paragraphs.
4. By 4:00pm on 12 August 2021, the plaintiff provide further and better particulars of paragraph 53A(b).
5. Paragraphs 117 to 124 of the TFASOC be struck out, without prejudice to the plaintiff's right to seek leave to amend its pleading in respect of the allegations in those paragraphs.
6. Paragraph E of the Prayer for Relief in the TFASOC be struck out, without prejudice to the plaintiff's right to seek leave to amend its pleading in respect of the allegations giving rise to that claim for relief.
Costs
7. By 4:00pm on 9 August 2021, the parties file and serve written outlines of submissions limited to 6 pages and any affidavit material on which they intend to rely in relation to the costs of and incidental to the defendant's application made by way of summons dated 31 July 2020 (as subsequently amended) and 1 March 2021.
8. By 4:00pm on 13 August 2021, the parties file and serve by way of reply any written outline of submissions limited to 3 pages and any affidavit material on which they intend to rely.
Plaintiff's amended statement of claim
9. By 4:00pm on 12 August 2021, the plaintiff serve on the defendants a draft proposed fourth further amended statement of claim.
10. By 4:00pm on 26 August 2021, the defendants serve on the plaintiff a document setting out any objections to the form of the proposed fourth further amended statement of claim, and the basis for those objections, or if there are no objections, notify the plaintiff of that fact and provide a copy of that correspondence to the Court.
11. By 4:00pm on 9 September 2021, the plaintiff file and serve any summons seeking leave to amend the TFASOC, an outline of written submissions in support of that summons, and any affidavit material in support of the summons upon which it intends to rely.
12. By 4:00pm on 7 October 2021, the defendants file and serve an outline of written submissions as well as any affidavit material upon which they intend to rely in opposing the plaintiff's summons.
13. The hearing of any application by the plaintiff of the kind referred to in paragraph 13 be listed on a date to be fixed after 7 October 2021.
14. The proceeding is listed for further directions at 10:00am on 3 September 2021 before Justice Connock.
15. There is liberty to apply.
AND THE COURT FURTHER ORDERS:
16. Any further hearing of the defendants' applications by amended summons filed 1 March 2021 a date to be fixed.
15 The Optus Entities' submissions were set out in its written submission dated 9 August 2021 and its reply written submission dated 13 August 2021. TeleChoice filed an affidavit of its solicitor, Mr Young, filed 9 August 2021 and set out its submissions in its written submission dated 9 August 2021 and its reply written submission dated 24 August 2021. I have had regard to all of the affidavit material and submissions and the further materials and submissions referred to in it. Because the parties consented to the costs issue being determined on the papers there were no oral submissions.
16 The Optus Entities submitted that they were entitled to their costs of and incidental to the applications the subject of the First Summons and the Second Summons, contending that, following the contested hearing on 27 and 28 April 2021, the court delivered reasons, the effect of which was that the Optus Entities' applications succeeded in 'large part'. The Optus Entities also submitted that:
(a) insofar as the costs were referable to paragraphs 3, 4, 5 and 6 of the First Summons or paragraph 4 of the Second Summons, such costs should be paid on an indemnity basis; and
(b) insofar as the costs were referable to the balance of the First Summons and the Second Summons, such costs should be paid on a standard basis.
17 In support of their substantive position the Optus Entities made various observations regarding the circumstances and outcome of the various applications, to which I have had regard and they are addressed further later in these reasons.
18 In addition, the Optus Entities contended that TeleChoice should pay their costs, on a standard basis, of various claims that they said had been abandoned and discontinued by TeleChoice. In part the abandonment and discontinuance was said to be constituted by the filing of the Third FASOC which had abandoned and discontinued the claims in paragraphs 20 to 28, 50 and 147 to 150, of the Second FASOC. The Optus Entities also sought their costs referable to TeleChoice's abandonment of the claims regarding internal dealer codes 00017, 00037, 00057, 00067, 00077, 00087, 00097, 14121, and 39425.
TeleChoice's primary written submission and reply written submission
19 TeleChoice's position was different. It contended that whilst the Optus Entities had some success with their applications for orders striking out parts of the Third FASOC, they had failed entirely on their summary judgment/stay applications and also failed in respect of certain other parts of their strike out applications and an aspect of their application seeking further particulars. TeleChoice submitted that the appropriate disposition was that TeleChoice should pay 60% of the Optus Entities' costs of the Second Summons, and that otherwise there should be no order as to costs as between the parties in respect of the costs of and incidental to the First Summons and the Second Summons.
20 In support of its position TeleChoice referred to the matters raised in its solicitors' letter of 9 June 2021, which were said to be summarised in its primary written submission of 9 August 2021. Briefly and in substance, TeleChoice sought to treat the First and Second Summons as being somewhat disconnected, and made the following submissions.
21 As to the first summons it was said that there should be no order as to costs. The primary contentions raised in this context were as follows:
(a) The First Summons dealt with three substantive matters: a summary judgment application based on exclusion of liability clauses; a stay/summary dismissal application regarding dealer code changes; and an attempt to stay or dismiss TeleChoice's clawback claims on the basis that they were not properly particularised.
(b) At the time of the filing of the First Summons the Optus Entities' defence stated or admitted that the relevant internal dealer codes had been 'changed' by the Optus Entities, but this was clarified by Mr Wong's second affidavit of 4 September 2020. The Optus Entities then amended their defence on 17 November 2020 in which they abandoned the use of the word 'changed' in the particulars to paragraph 49 and 52. After that occurred TeleChoice then accepted Mr Wong's evidence about the effect of internal dealer code changes not impacting on commission paid to TeleChoice and has not pressed its claims in respect of such changes (except for the Remaining Changed Codes as defined in the Primary Reasons).
(c) Although the parties appeared before the court on 23 November 2020, there was no final determination of the matters raised in the First Summons and TeleChoice filed the Third FASOC which addressed the matters raised by the First Summons, including the internal dealer code claims, in light of Mr Wong's evidence and the Optus Entities' amended defence.
(d) The Second Summons did not pursue a number of the applications made in the First Summons which were not affected by the filing of the Third FASOC, including, for example, the Optus Entities abandoning their attempt to seek summary judgment based on the exclusion of liability provisions in the relevant agreement.
(e) The principal issue the subject of the First Summons was the effect of the dealer code changes and this became moot once the Optus Entities filed evidence contradictory to their pleading, and subsequently amended their defence. Upon that occurring, so it was said, TeleChoice amended its claim to press only the dealer codes that were not the subject of Mr Wong's evidence.
22 With respect to the Second Summons, TeleChoice submitted that:
(a) Whilst TeleChoice accepted that the Optus Entities had some success in their application, particularly in respect of their application to strike out various paragraphs of TeleChoice's Third FASOC, they had been entirely unsuccessful in their summary judgment applications.
(b) It was the summary judgment applications that were the subject of most of the evidence filed in the proceeding, which was substantial and comprised the majority of the application books - noting further that the applications to strike out the pleadings did not require evidence and were to be decided on the face of the pleadings.
(c) The Optus Entities were unsuccessful in their application for further particulars of paragraph 46 of the Third FASOC, and their application that paragraphs 53A(b) and (c) be struck out.
(d) It is impossible to undertake a precise mathematical assessment of the proportion of the parties' and the court's time spent on the various applications made in the Second Summons. On the assumption that most of the costs of the affidavit material relied upon in the Second Summons were incurred as part of the First Summons (and therefore should be the subject of no order as to costs) an appropriate order would be for TeleChoice to pay 60% of the Optus Entities' costs of the Second Summons.
23 It was further submitted that, if the court makes the costs orders sought by TeleChoice, the Optus Entities should be ordered to pay TeleChoice's costs of the application in respect of costs because this outcome was proposed to the Optus Entities in TeleChoice's solicitors' letter of 9 June 2021 and rejected by the Optus Entities.
24 In its reply written submission, TeleChoice emphasised that it was seeking to address only one issue by way of reply, namely the contention that TeleChoice did not have a proper basis to allege in paragraphs 49 and 50 of the Third FASOC that commission had not been paid in respect of the relevant changed internal dealer codes. It contended that, having regard to the terms of clause 4.5 of Schedule 2 to the Master Dealer Agreement and the dealer code policy - the effect of which was said to be summarised at paragraph 44 of the Third FASOC - TeleChoice was entitled to assume, and therefore had a proper basis for alleging, that where a TeleChoice customer's dealer code was changed it would result in call commission ceasing to be paid to TeleChoice.
25 In further support of its proper basis contention TeleChoice referred to the position not initially being made clear by the Optus Entities' defence, because it had stated in its particulars that the dealer codes had been 'changed', which was later amended. Again it was submitted that once the clarification occurred, and in the light of Mr Wong's evidence, TeleChoice acted appropriately and responsibly by abandoning those examples of claims where the Optus Entities had applied an internal dealer code but the relevant customer had nevertheless remained associated with a TeleChoice dealer code. Prior to that point, so it was said, TeleChoice had a clear factual and contractual basis for making the allegations and there is no basis for an award of indemnity costs against it.
26 In reply to TeleChoice's primary written submission, the Optus Entities contended that TeleChoice's attempt to rely upon the Optus Entities' defence was misconceived for three reasons. First, the alleged lack of a proper basis upon which to commence the internal dealer code claims could not be impacted by the later serving of a defence. Second, the Optus Entities' amended defence of 1 April 2020, as well as the earlier iterations of that pleading, specifically alleged that TeleChoice was paid all applicable call commission even where a digital advance was carried out by the Optus Entities directly. Further, although particulars in the defence had used the word 'changed' with respect to internal dealer codes, given what was positively pleaded, the Optus Entities' assertion by their 17 November 2020 amendments contradicted what had previously alleged was wrong. Third, there was no causal link between the filing of the Optus Entities' further amended defence on 17 November 2020 and the concessions detailed in the annexure to the Optus Entities' cost submissions - the first of which was made on 10 December 2020, being a date after the contested hearing on 23 November 2020.
27 The Optus Entities submitted that there was no basis upon which to distinguish between the First and Second Summons and that TeleChoice's attempt to bifurcate them was artificial. In substance it was submitted that the Optus Entities filed one application, which after being part heard was the subject of the court directed conferral process. Following the completion of that process and the filing of a further proposed claim, the court required a fresh summons to be filed rather than further amending the First Summons, as had been proposed.
28 It was submitted that the relief identified in the First Summons was, in large part, the subject of the Second Summons, although acknowledging that the Optus Entities did not maintain their summary judgment application in respect of the exclusion/limitation clauses in the relevant agreement. The Optus Entities rejected the notion that this was an 'example' of a number of applications that were not pressed.
29 With respect to the contention that the Optus Entities had been entirely unsuccessful in their summary judgment application, it was submitted that this overlooked the substantial and late concessions made by TeleChoice regarding the internal dealer code claims, also contending that they were entitled to the costs of securing those concessions - and in so doing referring to observations of the Court of Appeal in Yue'e Zhao v Suzhou Haishun Investment Management Co Ltd.[4] They submitted further that TeleChoice's position also overlooked the court's findings regarding the inadequate pleading of TeleChoice's Intended Telstra Appointment claims.
30 As to the costs of the application in respect of costs the subject of these reasons, the Optus Entities contended that such a submission was premature, but should be rejected in any event even if the court were to make the costs order sought by TeleChoice. This was said to be because there was a difference between the costs proposal referred to in TeleChoice's solicitor's letter and that which TeleChoice now seeks in its submissions.
Principles and observations regarding costs determinations
31 There was no relevant dispute between the parties regarding the principles relevant to the determination of questions of costs. TeleChoice observed that I had referred to a number of these in Kevin Hughes Investments Pty Ltd v Ebert Unit Developments Pty Ltd.[5] Given the understandable emphasis placed by the parties on the observations of the Court of Appeal in Chen v Chan, it is convenient and efficient to set out again the observations made in Kevin Hughes, which I do below in almost identical terms.
32 Principles relevant to the exercise of the court's discretion in relation to costs have been addressed in many cases and are well known, aspects of which I addressed in Weatherbeeta Limited v Hammersmith Nominees (No 2).[6] It is well settled that a guiding principle by which the court's discretion as to costs is to be exercised is that the successful party is generally entitled to costs, which was a point emphasised by the High Court in Northern Territory v Sangare (Sangare)[7] as follows:
[24] It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.[8] While the width of the discretion 'cannot be narrowed by a legal rule devised by the court to control its exercise',[9] the formulation of principles according to which the discretion should be exercised does not 'constitute a fetter upon the discretion not intended by the legislature'.[10] Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.[11]
[25] A guiding principle by reference to which the discretion is to be exercised - indeed, 'one of the most, if not the most, important' principle - is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party.[12] The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action.[13] But in the present case, there was nothing of this kind in the conduct of the appellant in relation to the litigation that might have weighed against the exercise of the discretion in its favour.[14] There was no suggestion of any conduct on the part of the appellant, whether by unreasonable delay or a want of the cooperation required of litigants to ensure the 'just resolution of the real issues in civil proceedings with minimum delay and expense',[15] that might have been taken into account to justify refusing the appellant an order for its costs.
33 In Chen v Chan (No 2),[16] the Court of Appeal observed as follows:
Relevant principles
[10] The contentions of the parties raise a number of questions relevant to costs orders on appeal. The principles relevant to these questions can be summarised as follows:
(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.[17]
(2) The Rules of Court[18] permit significant flexibility in determining questions of costs. In particular, the court is entitled to examine the realities of the case and will attempt to do 'substantial justice' as between the parties on matters of costs.[19]
(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties,[20] a court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.[21]
(4) A court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5) Where a court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation,'[22] rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
(6) Where a number of parties have had the same representation, there is a 'rule of thumb'[23] as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted.
(7) Usually, an order for costs will be made on a party/party basis.[24] But an order for costs on a solicitor/client or indemnity basis may be made where special or unusual circumstances have been demonstrated,[25] for example, by establishing misconduct in the proceeding, that the proceeding was brought for an ulterior purpose, or that it was patently unreasonable to institute, or maintain, the proceeding. Special circumstances may also include the making of an allegation of fraud which is not proved.[26]
34 In Diakou v Rouse,[27] the Court of Appeal further observed that:
[48] Section 24(1) of the Supreme Court Act 1986 confers on the Supreme Court a wide discretion in deciding questions of costs.[28] However, that discretion must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.[29] There are well-established principles that provide guidance for the exercise of the discretion and avoid it being exercised in an arbitrary or inconsistent manner.[30]
[49] One such well-established principle is that costs usually follow the event, that is, that the unsuccessful party is usually ordered to pay the successful party's costs. Recently, in Northern Territory v Sangare, the High Court said the following about that principle:
[50] Consistent with this principle, where the outcome of the proceeding is such that it cannot be said that one party has been successful and the other has been unsuccessful, it may be appropriate that there be no order as to costs.[32] That is also the case in a proceeding where its subject matter or the relief sought are such that neither party can be said to have succeeded.[33] However, the conduct of one of the parties in relation to the litigation may be such as to warrant an order for costs being made against that party.
35 In Yue'e Zhao v Suzhou Haishun Investment Management Co Ltd,[34] it was observed by the Court of Appeal that, where there has been no adjudication on the merits of a claim, some additional considerations arise:
[9] The parties agree that the general rule to be applied in circumstances such as the present is that stated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin[35] in the following terms:
...It will be necessary to return in a little more detail to the facts of the case, but it is first necessary to state the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means.
In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action....
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.[36]
[10] In Nichols v NFS Agribusiness Pty Ltd,[37] the New South Wales Court of Appeal applied the principles stated in Lai Qin, as explained in later cases,[38] and allowed an appeal against a trial judge's decision to award costs.[39] In the course of reviewing the authorities following Lai Qin, Payne JA (Basten and Meagher JJA agreeing) accepted that, absent any consideration of the merits of the proceeding, costs may be ordered where there is a capitulation by one party - in the sense that it 'effectively surrenders to the other'.[40] In his Honour's view, this approach is consistent with the judgment of McHugh J in Lai Qin.[41] Payne JA referred to the dissenting judgment of Sackville AJA in Muhibbah Engineering (M) BHD v Trust Co Ltd,[42] and to the reference by Sackville AJA in that decision to the following statement by Burchett J in ONE.TEL Ltd v Deputy Commissioner of Taxation:
It is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.[43]
[11] In Nichols, Payne JA considered that, in Muhibbah Engineering:
Sackville AJA was explaining that when in Lai Qin McHugh J described a case where the party seeking costs "in effect, has succeeded in obtaining the relief sought in the proceedings", his Honour was referring to a case where one party, after litigating for some time, effectively surrenders to the other.[44]
[12] In fact, the quoted words which Payne JA attributes to McHugh J in Lai Qin do not appear in McHugh J's judgment. They are a quote from Sackville AJA's judgment in Muhibbah Engineering.[45] However, the principles stated by McHugh J in Lai Qin were, in his words, intended to 'govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means'.[46] We accept as a general principle that where a party litigates for some time and then acts so as to effectively surrender or capitulate to the other, that will usually be a strong ground to award costs against the party who has surrendered or capitulated. But each case will depend on its own facts.
36 As the Optus Entities observed, when exercising its discretion to award costs the court is also to have regard to the objects set out in s 9(1) of the CPA and may have regard to the matters referred to in s 9(2). The court is also subject to the obligation in s 8(1) of the CPA regarding the overarching purpose referred to in s 7.
The connection between the First Summons and the Second Summons
37 To the extent that TeleChoice submitted that the First Summons and the Second Summons should be viewed entirely separately or as disconnected events or circumstances in relation to costs, I do not accept that submission. Given the procedural history (as reflected in part in the Procedural Chronology) and the circumstances in which the Second Summons was filed rather than the First Summons being further amended, it is in my view clear that, in substance, they each related to and were integrally connected with the applications that were ultimately pressed in the Second Summons and are the subject of the Primary Reasons.[47]
38 That this is so is supported by many matters, including: the procedural history leading up to the filing of the First Summons; the content of the First Summons and the issues raised by it; the written submissions filed by each of the parties in relation to the First Summons; the partial hearing of the applications that took place on 23 November 2020 and the transcript of the same; the circumstances in which that hearing was adjourned, including the regime put in place enabling TeleChoice further to reflect on the issues raised by the court and the Optus Entities, and provide a further proposed pleading; the revision of the pleading by way of the Third FASOC; and the considerable overlap between many matters raised in the First Summons and those raised in the Second Summons.
39 As to the last point, the overlap is also well illustrated by a review and comparison between the First Summons and the Second Summons, the submissions filed in respect of each, the overlap in the affidavit evidence relied upon by both parties, and the terms of the Second FASOC and the Third FASOC. It is also supported by a review of the transcript of the hearing on 23 November 2020, the transcript of the directions hearings on 12 February and 23 March 2021, and a comparison with that which was addressed in the written and oral submissions in respect of the Second Summons.[48] I note also that in one earlier iteration of its written submissions in support of the Second Summons, TeleChoice expressly relied upon many of the matters raised in the written submissions filed in support of the First Summons.
40 That it is appropriate in the context of costs that the subject matter of each of the summonses be considered as inextricably linked in the way that they were is further supported by the fact that the only reason the Second Summons was filed - as opposed to the First Summons being further amended - was for the convenience of the court. The filing of the Second Summons resulted directly from a request I made, for convenience and efficiency, given the complexities that had arisen and the possible risk of confusion given the steps in the process between the parties after 23 November 2020 in connection with the Third FASOC. Not only was this reflected in the transcript of the directions hearing on 12 February 2021 and the correspondence between the court and the parties on 24 and 25 February 2021, but it was underscored by the court directing that the Optus Entities be relieved from the payment of any filing fee in relation to the Second Summons.
41 The position is also supported by the approach TeleChoice took after the luncheon adjournment on 23 November 2020 when, by its senior counsel, it was confirmed that, having regard to matters raised during the hearing so far that day, TeleChoice wanted the opportunity to review and revise the statement of claim.[49] It was after this that the regime that ultimately led to the filing of the Third FASOC, and the filing, hearing and determination of the Second Summons, was put in place. So much is also reflected in the transcript of the hearings on 23 November 2020, 12 February 2021 and 23 March 2021 and the orders made on those occasions. I add for completeness that it is not intended to convey any criticism of the position then taken by TeleChoice at the time, which was an understandable position to take in the circumstances - again also recognising that neither junior nor senior counsel appearing for TeleChoice at that time (or subsequently) were the original authors of the defective pleading under consideration.
TeleChoice should pay 75% of the Optus Entities' costs of and incidental to the applications
42 As is apparent from the Primary Reasons and the summary of conclusions extracted above, TeleChoice is correct that the Optus Entities did not enjoy complete success on all of the applications. However, TeleChoice in its costs submissions at least implicitly understated in part the Optus Entities' level of success on the applications, whilst the Optus Entities in their submissions tended to overstate in part their level of claimed success. The true position is more accurately characterised as falling between the two positions.
43 One matter that is clear is that, given the multi-faceted applications, the Optus Entities' material but not total success, and the complexity of the relevant procedural steps and history, this is a case where, consistent with the principles earlier referred to, a pragmatic approach is called for in the framing of appropriate orders for costs, including by awarding the Optus Entities a proportion of their costs on the applications. As observed in Chen v Chan, and as was recognised by the parties, this is a task to be undertaken primarily as a matter of impression and evaluation in the manner referred to by the Court of Appeal in that case, and taking into account the other matters there raised. TeleChoice is correct that this is not a case where it is either appropriate or possible to approach the exercise with mathematical or arithmetical precision. I also take into account the challenges, costs and inefficiencies that may follow in any costs assessment if they were to be determined by seeking to minutely atomise each step or event in the relevant procedural history, noting that such an approach would not well serve the overarching purpose or the objects and matters referred to in s 9 of the CPA - which I also take into account more generally.
44 In all of the circumstances, and having regard to the principles and observations earlier referred to, I have concluded that TeleChoice should be required to pay 75% of the Optus Entities' costs of and incidental to the applications the subject of the First Summons and the Second Summons, to be assessed on a standard basis if not agreed. Conscious as I am of the cautionary observations of the Court of Appeal in Luxmore Pty Ltd v Hydedale Pty Ltd[50] against the provision of too detailed or elaborate reasons when addressing questions of costs - and mindful of the detail set out in the Primary Reasons - I elaborate briefly below regarding matters raised by the parties and the conclusion reached in the exercise of my discretion.
45 It is apparent from the Primary Reasons that, as was there recorded, and viewed as a matter of substance, the Optus Entities succeeded in 'large part' with their applications. Of course that characterisation is not to be viewed in isolation (as it appeared the Optus Entities at least implicitly sought to do), but is informed by the full summary of conclusions and the more detailed reasoning behind them, as set out in the Primary Reasons.
46 I do not accept TeleChoice's submission that the Optus Entities ought not recover any, or any material part, of their costs in relation to the affidavit evidence, which was initially directed, at least in material part, to the summary judgment or stay/dismissal application in respect of the internal dealer codes.[51] As addressed in paragraphs 96-99 of the Primary Reasons, there was extensive evidence around the internal dealer code process and essentially unchallenged evidence that the internal dealer codes involved an internal processing matter that did not have any effect on the payment of airtime commissions to TeleChoice. Ultimately it was not necessary for this aspect of the summary judgment application to be determined at the hearing because TeleChoice conceded the position and no longer pressed its internal dealer code claims. Although that appeared to be a responsible position for TeleChoice to take given the evidence before the court, in my view it amounted to a capitulation in relation to these claims of the kind addressed in Kevin Hughes and the authorities referred to in paragraph 35 above.
47 I do not accept TeleChoice's submission that the Optus Entities should be deprived of costs relating to the internal dealer code summary judgment application on the basis that the position taken by TeleChoice resulted from, or was materially caused by a reference in particulars in the Optus Entities' defence to dealer codes having been 'changed', that was later altered by amendment by the Optus Entities on 17 November 2020. First, having regard to the Optus Entities' defence as a whole, the Optus Entities' position was clear regarding commission having been paid notwithstanding the application of an internal dealer code. As the Optus Entities submitted, so much was apparent from their amended defence of 1 April 2020. Secondly, a review of the transcript of the hearing on 23 November 2020 reveals that this factual issue remained hotly contested at that time, as was underscored by short notice having been given in advance of the hearing of the desire to cross-examine Mr Wong. Thirdly, the evidence did not establish that the concessions made in relation to the internal dealer codes resulted from the alteration to the defence, noting also that the concessions were made over time between about 10 December 2020 and 19 March 2021, as submitted by the Optus Entities. Fourthly, and in any event, given that the claim in respect of the internal dealer codes was the subject of the Second FASOC and the Optus Entities' defence, it was open to the Optus Entities to make an application for summary judgment, as they did in the First Summons and the Second Summons to varying degrees. Finally, I refer also to the observations made above regarding TeleChoice's capitulation regarding these internal dealer code claims given the evidence.
48 Having regard to the above, I do not accept that the Optus Entities should be deprived of their costs in connection with the summary judgment application in relation to the internal dealer codes. I therefore take this into account in the evaluative exercise in arriving at my determination, as I do the different position in relation to the other aspects of the Optus Entities' summary judgment/stay applications as reflected in the Primary Reasons. However, it is also appropriate to take into account, as the Optus Entities submitted, the inadequate state of TeleChoice's pleading of the intended Telstra appointment claims and its impact on the court's ability properly to consider some aspects of the Optus Entities' other summary judgment applications.
49 As TeleChoice submitted, it is also appropriate to have regard to the fact that, by the Second Summons, the Optus Entities did not press a summary judgment application based on contractual exclusion or limitation clauses that formed part of the applications the subject of the First Summons. Although the factual and other issues involved were such that this appeared to be a responsible position for the Optus Entities to take, it was not ultimately pressed and it is proper to take into account in the evaluative exercise, as I do. That said, it is not a matter that weighs very heavily in the costs balance given the relatively limited nature of the issue and the various other applications, and particularly given that the summary judgment application relating to the internal dealer codes would have resulted in the filing of extensive evidentiary material in any event.
50 Although the Optus Entities met with considerable success in their strike out applications, either by way of determination or (responsible) capitulation during the hearing,[52] I accept TeleChoice's submission that I should also take into account that the Optus Entities were unsuccessful in their application for further particulars of paragraph 46 of the Third FASOC and their application to strike out paragraphs 53A(b) and (c). However, the point regarding paragraph 53A is of little persuasive force. This is because the criticism made of paragraph 53A of the Third FASOC by the Optus Entities was made out, and perhaps exacerbated by TeleChoice's fluctuating position on the topic during the hearing. Although I declined to strike out the offending paragraph as a matter of discretion, I directed that the deficiency be remedied by the provision of further particulars. It follows that the Optus Entities enjoyed a substantive measure of success in relation to this issue.
51 As I have said, in all of the circumstances, and having regard to the principles and other matters referred to above, TeleChoice should pay, on a standard basis, 75% of the Optus Entities' costs of and incidental to the First and Second Summons.
52 It will be apparent from the above that I do not accept the Optus Entities' submission that their costs referable to the internal dealer code claims should be paid by TeleChoice on an indemnity basis. Contrary to the submissions of the Optus Entities, it has not been established that there are special or unusual circumstances that would warrant the making of such an order, including without limitation, circumstances of the kind given by way of example by the Court of Appeal in Chen v Chan. I also do not accept that it has been established that it was 'patently unreasonable' for TeleChoice to maintain the claims that it did to the point at which the concessions were made so as to warrant the making of an indemnity costs order against TeleChoice on this aspect.
53 Although it would have been possible for TeleChoice to have made concessions a little earlier than it did, it was not bound to, and its failure to do so was not in the circumstances conduct of a kind warranting an order for indemnity costs being made against it. As the evidence, history, and Procedural Chronology demonstrated, the issue involved some factual investigation and assessment, was not without complexity, and was the subject of a number of affidavits from Mr Wong. This also occurred in a context where there was a level of asymmetry of information favouring the Optus Entities given the knowledge of the Optus Entities' systems and TeleChoice's inability to access them, which is not a criticism but a relevant contextual circumstance regarding this issue.
54 Further, and as reflected in TeleChoice's reply submissions, it can be seen from the terms of clause 4.5 of schedule 2 to the Master Dealer Agreement, and the alleged terms of the dealer code policy summarised in paragraph 44 of the Third FASOC, why it is that TeleChoice considered there to be a proper basis for alleging that where the customer's dealer code was changed it would result in call commission ceasing to be paid to TeleChoice. This was succinctly referred to in paragraphs 5 and 6 of TeleChoice's reply submissions, to which I refer but need not set out.
55 It was of course open to the Optus Entities to bring a summary judgment application in respect of the internal dealer code claims, as they did. As this unfolded, and before it was determined, or the hearing on 27 and 28 April 2021 occurred, the evidence was considered and TeleChoice ultimately abandoned these parts of its claim. As is apparent, the success enjoyed by the Optus Entities in respect of TeleChoice's capitulation on this issue has been taken into account and reflected in the evaluative exercise required to be undertaken by the court and the favourable costs order to be made in favour of the Optus Entities.
56 An order for indemnity costs against TeleChoice is not appropriate in the circumstances.
Optus Entities' claim for costs in respect of claims said to be abandoned or discontinued
57 As submitted by the Optus Entities, by TeleChoice filing the Third FASOC, TeleChoice conveyed that it was no longer going to pursue or press:
(a) the claim constituted by paragraphs 20 to 28 of the Second FASOC;
(b) the claim constituted by paragraph 50 of the Second FASOC; and
(c) the claim constituted by paragraphs 147 to 150 of the Second FASOC.
As recorded in the orders made on 12 February 2021, the Optus Entities expressly reserved their rights in respect of the costs referable to these claims, which were characterised as having been abandoned or discontinued.[53] TeleChoice also indicated that it was not pursuing or pressing its claims in paragraph 49 insofar as they were referable to the internal dealer codes addressed in the Primary Reasons.[54]
58 The Optus Entities submitted that an order should be made that TeleChoice pay their costs referable to each of the abandoned claims, which they also submitted would assist in removing scope for dispute at any later taxation of costs in connection with the proceeding more broadly.
59 TeleChoice did not address these costs in its primary written submission or in its reply written submission, expressly noting in its reply submission that it sought to address only a single 'important point', namely the contention that TeleChoice did not have a proper basis for making the allegations regarding the internal dealer codes claims.
60 Given that the claims referred to are no longer being pressed it appears at least possible that some costs will have been incurred by the Optus Entities in relation to the claims prior to being made aware that they were no longer to be pursued. In the circumstances it is appropriate to make a costs order in favour of these claims because they are no longer to be pursued and, in substance, can be seen to have been abandoned.
61 It is possible, however, that some of the costs incurred that might be seen to be referable to one or more of these claims, might have been incurred in relation to other aspects of the proceeding that are continuing in any event. That being so, it is appropriate to make a costs order in favour of the Optus Entities in respect of these claims, but the order should be framed by reference to any costs thrown away, rather than to costs 'referable' to such claims. Whilst it is possible that, in the circumstances, this may turn out to be a distinction without a difference in respect of one or more categories of costs, that is a matter for consideration by others on another day and about which I shall say no more.
62 For completeness I add that it was not contended that r 63.15 of the Rules was engaged, no doubt because of the manner in which the relevant claims have come not to be pursued. But even if the substance of the position is such that it is in truth engaged, which I need not decide, I would have exercised my discretion to 'otherwise order' by making an order to the effect referred to for the reasons stated above.
63 TeleChoice's submission that the Optus Entities should pay its costs of and associated with this costs application was predicated upon costs orders of the kind sought by TeleChoice being made. This has not occurred and therefore its submission on this point does not engage.
64 In any event, neither party has had its position on costs accepted and the evaluative process that has been undertaken has resulted in a costs determination falling in between the parties' respective positions. In these circumstances it is appropriate that each party bear their own costs of and associated with the applications for costs the subject of these reasons.
65 TeleChoice should pay, on a standard basis, 75% of the defendants' costs of and incidental to the defendants' applications by the First Summons and the Second Summons, and the defendants' costs thrown away by reason of TeleChoice no longer pursuing the claims referred to in paragraph 57 above.
66 I propose to make orders to the following effect:
(a) The plaintiff pay 75% of the defendants' costs of and incidental to the defendants' applications by summons dated 31 July 2020 (and as later amended) and by summons dated 1 March 2021, to be assessed on a standard basis if not agreed.
(b) The plaintiff pay the defendants' costs thrown away, if any, by reason of the plaintiff no longer pursuing the claims referred to:
(i) in paragraphs 20 to 28, 50, and 147 of the Second FASOC dated 25 November 2019; and
(ii) paragraph 49 of the Second FASOC dated 25 November 2019 insofar as those claims related to dealer codes 00017, 00037, 00057, 00067, 00077, 00087, 00097, 14121 and 39425‑-
such costs to be assessed on a standard basis if not agreed.
(c) The plaintiff and the defendants each bear their own costs of and incidental to their respective applications regarding the costs the subject of these reasons and orders.
[1] As opposed to no more than exchanges of correspondence between solicitors setting out the parties' respective positions.
[2] Excluding the proposed claims in paragraphs 150A-150L, which it was agreed are to be the subject of a separate further application by TeleChoice for leave to amend.
[3] Subject to confirming that these codes have been correctly transcribed.
[4] [2020] VSCA 34 [12].
[5] [2020] VSC 167 (Kevin Hughes).
[6] [2019] VSC 713, [52]-[59].
[7] [2019] HCA 25; (2019 265 CLR 164, 172-173 [24]-[25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ) (footnotes in original).
[8] Donald Campbell & Co v Pollak [1927] AC 732, 811-812; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 539-540, 557, 561-562, 569; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 96 [65], 120-121 [134].
[9] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 537. See also at 533.
[10] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 541-542, see also 558-559; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 96 [65], 121 [134].
[11] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 519; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 541-542, see also 558; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 96 [65], 121 [134].
[12] Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co [No 2] [1953] 1 WLR 1481, 1484; [1953] 2 All ER 1588, 1590. See also Harold v Smith [1860] EngR 516; (1860) 5 H & N 381, 385 [1860] EngR 516; [157 ER 1229, 1231]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 96‑97 [66]-[67], see also 86 [35], 120-121 [134].
[13] See, eg, Bostock v Ramsey Urban District Council [1900] UKLawRpKQB 143; [1900] 2 QB 616, 622, 625 and 627; Ritter v Godfrey [1920] 2 KB 47, 53, 60 and 66; Scottish Gympie Gold Mines Ltd v Carroll [1902] St R Qd 311, 315-316; Stewart v Moore [1921] St R Qd 182, 190; Redden v Chapman [1949] NSWStRp 28; (1949) 50 SR (NSW) 24, 25.
[14] Anglo‑Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873, 874; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97-98 [69].
[15] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 210 [90]. See Supreme Court Rules, r 1.10.
[16] [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA) (footnotes in original). Although the Court was addressing the costs of an appeal, as others have noted, such observations apply generally to costs questions arising at trial. See also Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [2016] VSCA 233, [13] (Tate and McLeish JJA and Ginnane AJA) (Nom De Plume). See also Keys Consulting Pty Ltd v CAT Enterprises Pty Ltd [2019] VSCA 169, where Maxwell P, Niall JA and Macaulay AJA, cited with apparent approval the observations of Tate and McLeish JJA and Ginnane AJA in Nom De Plume regarding a court taking a pragmatic approach in relation to costs where there is a multiplicity of issues and mixed success enjoyed by the parties.
[17] Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97-8 (McHugh J); 124 (Kirby J).
[18] Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.04 at first instance and r 64.24 on appeal.
[19] Spotless Group Limited v Premier Building and Consulting Pty Ltd and Northern Suburban Properties Pty Ltd (Spotless) [2008] VSCA 115, [14].
[20] McFadzean v Construction Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250 (McFadzean) [157]-[158].
[21] Spotless [15]; Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748, 48, 136; Pricom Pty Ltd v Sgarioto (Unreported, Supreme Court of Victoria, Eames J, 24 April 1995), McFadzean [2007] VSCA 289, [152].
[22] Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114, [5].
[23] Currabubula Holdings Pty Ltd and Paola Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232, [90]. For a comprehensive analysis of the development of the 'rule of thumb', see [91]-[104]. See also Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567, 569.
[24] PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24, [34].
[25] Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127; Bass Coast Shire Council v King [1997] 2 VR 5, 29.
[26] Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd [1986] FCA 85; (1986) 10 FCR 177. See also Re Talk Finance and Insurance Services Ltd [1994] 1 Qd R 558 and Niml Ltd v Man Financial Australia Ltd (No. 2) [2004] VSC 510.
[27] [2019] VSCA 199, [48]-[50] (Kyrou, McLeish and Emerton JJA) (footnotes in original).
[28] See also Civil Procedure Act 2010 (Vic) s 65C(1).
[29] Sangare [2019] HCA 25 [24].
[30] Sangare [2019] HCA 25 [24].
[31] The passage omitted from the extract is the quote from Sangare set out above.
[32] See, eg, National Australia Bank Ltd v Horne [2011] VSCA 414 [3]; Apostolidis v Kalenik (No 2) [2011] VSCA 307; (2011) 35 VR 563, 612 [59]-[60]; Amalgamated Engineering Union v The Metal Trades Employers' Association [1935] HCA 61; (1935) 53 CLR 658, 664; Chiarella v Accident Compensation Commission [1992] VicRp 55; [1992] 2 VR 103, 108.
[33] See, eg, Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193, 201-3 [17]-[22], 208-9 [37]-[38]. Although the respondent in that case succeeded in overturning the decision of the Board of Examiners that she was not a fit and proper person to be admitted to legal practice, the Court held that the nature of the proceeding was such that no order as to costs should have been made.
[34] [2020] VSCA 34, [9]-[12] (Tate, McLeish, and Hargrave JJA) ('Zhao') (footnotes and emphasis in original).
[35] (1997) 186 CLR 622; [1997] HCA 6 ('Lai Qin').
[36] Ibid 624-5 (citations omitted) (emphasis added).
[37] (2018) 97 NSWLR 681; [2018] NSWCA 84 ('Nichols').
[42] [2009] NSWCA 205 ('Muhibbah Engineering').
[43] [2000] FCA 270; (2000) 101 FCR 548, 553 [6]; [2000] FCA 270, [6] (emphasis added), referred to with approval by the Full Federal Court in Chapman v Luminis Pty Ltd [2003] FCAFC 162, [7].
[44] Nichols [2018] NSWCA 84; (2018) 97 NSWLR 681, 690 [38]; [2018] NSWCA 84, [38].
[45] Muhibbah Engineering [2009] NSWCA 205, [52].
[46] Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624; [1997] HCA 6.
[47] Which is not to fail to recognise that some of the issues changed and were refined following the filing of the proposed Third FASOC and the communication regime regarding objections directed by the court.
[48] See, for example, the issues relating to the dealer codes that occupied most of the hearing time before it became apparent and the parties agreed that the applications should be adjourned. See transcript pages 7 to 74.
[49] See transcript of 23 November 2020 at pages 83:4-12 and 84:11-19.
[50] [2008] VSCA 212; (2008) 20 VR 481, 484; [2008] VSCA 212, [12] (Maxwell P and Kellam JA).
[51] But recognising also that Mr Wong's later affidavit addressed also the Remaining Changed Codes.
[52] As addressed in the Primary Reasons.
[53] Although they were not formally discontinued through the process provided for in the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').
[54] But not the Remaining Changed Code claims.
Business Service Brokers Pty Ltd
Optus Mobile Pty Ltd
(1990) 170 CLR 534
(1998) 193 CLR 72
(1986) 161 CLR 513
(2009) 239 CLR 175
(2007) 20 VR 250
(1986) 10 FCR 177
(2011) 35 VR 563
(1935) 53 CLR 658
(1997) 186 CLR 622
(2018) 97 NSWLR 681
(2000) 101 FCR 548
(2008) 20 VR 481