Tisdall v Health Insurance Commission

· the appellant's failure to advise the respondents formally and timeously of the abandonment of the original 30 grounds of appeal; thereby the respondents were obliged to prepare extensive detailed factual submissions and to produce to the court the extensive relevant evidence before the Committee.

3 It is clear that the usual order for costs will, to the extent that such an order is compensatory, compensate the respondents for all the extra and unnecessary work necessitated by the appellant's conduct of the litigation. That being so, the question is whether that conduct falls sufficiently outside the grounds of what might be called the normal hazards of litigation, including some degree of inefficiency, as to warrant an order for indemnity costs. 4 In our opinion it does not. The appellant felt obliged to change his legal advisors. It appears that counsel who appeared on the appeal was briefed in circumstances that prevented him getting fully on top of a case involving a series of complex factual issues. The appellant was not without any argument to present, even though it has been properly recognised, at length, that it was not one likely to find favour with us. When that realisation occurred, albeit belatedly, neither the appellant nor his advisers failed to act on it. The case comes down to the fact that proper realisation of the weakness of the appellant's argument was delayed. 5 The question of indemnity costs falls to be determined within a broad discretion. However, we do not feel that, in the circumstances as we apprehend them, an order for indemnity costs is warranted. That is not to say that we lack sympathy in general, with the views of Dowsett J. The implications of such views warrant further consideration in an appropriate case.

6 The order of the court will be that the appeal is, by consent (except as to the question of costs), dismissed and the respondents shall have their costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Madgwick and Finkelstein JJ.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

DR ALAN JOHN HOLMES (as the Director of Professional Services Review)

DR KENNETH NEVILLE (as Chairperson of Professional Services Review Committee no. 106)

DR DAVID ROSENTHAL (as a Member of Professional Services Review Committee no. 106)

DR NICHOLAS DEMEDIUK (as a Member of Professional Services Review Committee No. 106)

DOWSETT J: 7 I have had the opportunity of reading the reasons of Madgwick and Finkelstein JJ in this matter and am in general agreement with them. 8 When a party seeks an order for costs on an "indemnity basis", it implicitly represents that there is reason to believe that an order for costs taxed as between party and party will not fully compensate it for all costs reasonably incurred in its conduct of the proceedings. Traditionally, an order for "indemnity costs" was only rarely sought. However that is no longer the case. The frequency of such applications suggests that the profession may simply assume the inadequacy of "party and party" costs. I do not accept that such is necessarily the case, particularly where the proceedings in question are reasonably limited in their ambit. In an appeal, the issues have been defined by pleadings and/or by the evidence and have been identified and addressed in the reasons at first instance. One would expect that preparation for the appeal would be so focussed that costs reasonably incurred would be recoverable as "party and party" costs. If legal advisers assume the inadequacy of "party and party" costs, there is a risk that the expectation will become self-fulfilling. An order for "indemnity" costs would then become an invitation to the relevant legal advisers to charge more than they would have charged had the client received only the benefit of a "party and party" costs order. 9 I am no longer willing to assume that "party and party" costs will always be an inadequate basis for the recovery of costs reasonably incurred. In my view, a party seeking an order on any basis other than "party and party" taxation ought explain briefly why it is thought that the usual order will not be adequate. 10 The point is illustrated by the present case. The complaints made in the submissions are of changes in the appellant's grounds. However, as Madgwick and Finkelstein JJ have demonstrated, that does not mean that costs thrown away as the result of such changes will be unrecoverable on a "party and party" taxation. Nonetheless, that conclusion appears to be implied in the submissions. If practitioners are concerned that amounts allowed on "party and party" taxation do not reflect realistic levels of professional charging, they should pursue available remedies in individual cases and/or make representations as to existing fee levels. 11 I would decline the application for indemnity costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Counsel for the Respondent: Ms F Hampel SC Mr L Holcombe