Shaw v MAB Corporation Pty Ltd

REASONS FOR JUDGMENT 1 On 22 November 2013, I ordered that there be judgment for the respondents in this proceeding, and laid out a timetable for the filing and service of written submissions as to costs: Shaw v MAB Corporation Pty Ltd [2013] FCA 1231. Submissions were received from the respondents conformably with that timetable, but not from the applicant. These reasons are concerned with the respondents' application for costs. 2 As the successful parties on their application for summary judgment, the respondents would be conventionally entitled to their costs. I see no reason to depart from the usual course. 3 Additionally, the respondents have applied to have their costs taxed on an indemnity basis, pursuant to r 40.02(a) of the Federal Court Rules 2011 (Cth). In my reasons of 22 November 2013, I held that the applicant's proceeding was an abuse of process. More importantly in the present context, I went further than to uphold the respondents' submission that, in a number of respects, the abuse was constituted by the attempt to re-litigate issues which might reasonably have been made the subject of an earlier proceeding. At the general level, I held that the prosecution of the proceeding would bring the administration of justice into disrepute, and that the proceeding was being used as an instrument of oppression against the two respondents most centrally involved in the proceedings in the Supreme Court of Victoria. 4 In my view, the circumstances amply justify the assessment of costs on an indemnity basis. There was no response from the applicant to the respondents' submissions in favour of such an outcome, and, for my own part, I am unable readily to perceive any legitimate response that might be made. 5 There will be an order for the assessment of the respondents' costs on an indemnity basis. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.