Wright, C.F. & Anor v. Wheeler Grace & Pierucci Pty Ltd & Ors [1988] FCA 295

1. The first respondent is to pay the costs of the action, save for costs incurred in respect of the hearing on 15 March 1988.

The applicants are to pay the respondents' costs of the action on 15 March.

The applicants are to pay to the second, third and fourth respondents one-third of all the respondents' costs of the action, taxed as one set, excluding the costs incurred on 15 March.

There is no order as to costs with respect to the fifth respondent save for the costs of 15 March which is governed by (2) above.

I certify that the case was suitable for senior counsel.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

NO. WAG 108 OF 1986 BETWEEN: COLIN FREDERICK WRIGHT First Applicant and MAUREEN MARGARET WRIGHT Second Applicant and WHEELER GRACE & PIERUCCI PTY LTD First Respondent ROBERT JOSEPH PIERUCCI Second Respondent GLENN JOHN WHEELER Third Respondent MICHAEL JAMES GRACE Fourth Respondent and

SUPPLEMENTARY REASONS FOR JUDGMENT ON QUESTION OF COSTS

There are various ways in which one can approach the

question of costs in this case, and the achievement of a just result, having regard to the various outcomes as against different

respondents, is not an easy and obvious matter. However, it seems

to me that the respondents really fall into three groups. There is the corporate respondent, that is to say, the first respondent, against whom the applicants were successful. Then there are the three former directors of the corporate respondent, Messrs. Pierucci, Wheeler and Grace, against whom, as I found, the applicant had really no evidence at all, and against whom they had made, initially, although they were withdrawn, serious allegations of fraud, but who as I found in the case, really had no involvement in the representations upon which the liability of the company was founded. The third group is occupied by the fifth respondent, Mr Collins, whose conduct it was that fixed the first respondent with liability, but who escaped the liability himself by virtue of the interpretation which I have applied to s.75B of the Trade Practices Act. Given the joint representation of all respondents by one firm of solicitors and one set of senior and junior counsel, it seems obvious that their costs should be treated as one set and the question of their costs dealt with on

the basis of an apportionment in respect of that one amount.

Now, it seems to me, therefore, that the applicants, having succeeded against the first respondent, should have their costs of the action paid by the first respondent. Having failed completely against the second, third and fourth respondents, they should be responsible to them for a suitable proportion of their costs of the action and on the basis of the grouping that I have suggested is appropriate, it seems to me that the applicants

should pay one-third of the respondents' costs, assuming the whole

lot to be treated as one set, to the second, third and fourth

As to the fifth respondent, although it is true that the applicants did not succeed against him as a matter of law, it seems to me that, having regard to his central role in the liability which has been attributed to the first respondent and to the fact that in the end it was his conduct that was in question,

I should make no order as to the payment of his costs.

Given the nature of the allegations that were made in the statement of claim in the form that it took at the commencement of the hearing, including allegations of fraud which were later withdrawn, and the factual complexity of the case and of the various causes of action alleged in the pleadings, and given also the importance of the case to the respondents who carried on the business of investment advisers through the first respondent, it seems to me that this was a case in which, notwithstanding the small amount of money at risk, it was

Whilst the case, of course, is determined on its own facts and any other case must be likewise determined on its own facts, it seems clear enough that there were a number of investors present at the meeting at which the representations complained of were made and a number of investors who would have received the circular that was referred to in the pleadings, thus the possible

flow-on implications of the case gave it a potential importance

beyond mere appearance. In those circumstances, I think that

was appropriate to engage senior counsel and I will so certify

The terms of the proposed orders, to take account of the

The first respondent is to pay the applicants' costs of the action, save for costs incurred in respect of the hearing on 15 March 1988.

The applicants are to pay the respondents' costs of the action on 15 March.

The applicants are to pay to the second, third and fourth respondents one-third of all the respondents' costs of the action, taxed as one set, excluding the costs incurred on 15 March.

There is no order as to costs with respect to the fifth respondent save for the costs of 15 March which is governed by (2) above.

I certify that the case was suitable for senior counsel.

I certify that this and the preceding three (3) pages are a true copy of the Supplementary Reasons for Judgment of His Honour Justice French.

Counsel for the Applicants: Mr J.P.T. Olivier Solicitors for the Applicants: Messrs. Talbot & Olivier

Counsel for the Respondents: Mr M. McCusker QC with Mr A.T. Macknay

Solicitors for the Respondents: Messrs. Warren Harrison

Dates of Hearing: 8, 9, 10, 11, 15 and 16 March 1988 Date of Judgment: 22 April 1988 Date of Supplementary Reasons: 2 May 1988