Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32

FEDERAL COURT OF AUSTRALIA

Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32 Appeal from: Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (No 3) [2017] FCA 1203

File number(s): SAD 305 of 2017

Judge(s): WHITE, PERRY AND BANKS-SMITH JJ

Date of judgment: 27 February 2019

Catchwords: COSTS – whether award of costs unreasonable and plainly unjust – consideration of the circumstances in which the Court may depart from the ordinary rule as to costs – whether primary judge erred in not awarding indemnity costs – whether respondent acted unreasonably in refusing offers of compromise – where offers contained unenforceable terms with respect to third parties – whether rule 40.08 of the Federal Court Rules applied to reduce costs – whether the matter could have been more suitably dealt with by a lower court – where primary judge erred in exercise of discretion – observations as to the undesirability of complex costs orders requiring multiple taxations – where many competing considerations required the Court to undertake a broad evaluative judgment of what justice requires in the re-exercise of discretion – appeal allowed in part

Legislation: Civil Dispute Resolution Act 2011 (Cth) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Native Title Act 1993 (Cth) Federal Court Rules 1979 (Cth) Federal Court Rules 2011 (Cth)

Cases cited: A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27 Australian Medical Innovations v Go Medical Industries Pty Ltd (Unreported, Supreme Court of Western Australia, Wallwork J, 22 April 1996) Calderbank v Calderbank [1975] 3 All ER 333 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Frigger v Professional Services of Australia Pty Ltd (No 2) [2011] WASCA 103 (S) Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 House v The King (1936) 55 CLR 499 Hughes v Western Australian Cricket Association (Inc) [1986] FCA 382; [1986] ATPR 40-748 Kassem v Commissioner of Taxation (No 2) [2012] FCA 293 Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705 Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98 Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd [1994] FCA 302 New South Wales v Dueeasy Pty Ltd (Unreported, Supreme Court of New South Wales, Giles J, 28 February 1992) Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 Rapuano v Karydis-Frisan [2013] SASCFC 93 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 Szencorp Pty Ltd v Clean Energy Council Limited (No 2) [2009] FCA 196 Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (No 2) [2017] FCA 852 Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (No 3) [2017] FCA 1203