CATCHWORDS Costs - Trade Practices Act - damages claim - claim substantially successful - claim for solicitor and client costs - discretion - claim rejected - costs occasioned by amendments ~ proper order in respect of costs of parties against whom claim dismissed Federal Court of Australia Act, 1976 s.43 MUDGINBERRI STATION PTY LIMITED v THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION; JACK O'TOOLE; TREVOR SURPLICE; DICK ANNEAR; PAT ROUGHAN No. G123 of 1985 Morling J 14 October 1986 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. Gi23 of 1985 err w GENERAL DIVISION BETWEEN : MUDGINBERRI STATION PITY LIMITED Applicant AND: THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION First Respondent JACK O'TOOLE Second Respondent TREVOR SURPLICE Third Respondent DICK ANNEAR Fourth Respondent PAT ROUGHAN Fifth Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER : 14 October 1986 WHERE MADE : Sydney THE COURT ORDERS AS FOLLOWS: i. First respondent to pay the applicant's costs. 2. No order as to the costs of the second, third, fourth and fifth respondents. Note: Settlement and entry of orders 1s dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G123 of 1985 wee ewer GENERAL DIVISION BETWEEN : MUDGINBERRI STATION PTY LIMITED Applicant AND: THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION First Respondent JACK O'TOOLE Second Respondent TREVOR SURPLICE Third Respondent DICK ANNEAR Fourth Respondent PAT ROUGHAN Fifth Respondent Morling J. 14 October 1986 REASONS FOR JUDGMENT - COSTS On 21 July 1986 I ordered the first respondent to pay the applicant damages of $1,759,444 and entered judgment in that sum. I then reserved the question of costs. The applicant seeks an order that the first respondent pay the whole of its costs, to be taxed on a solicitor and client basis. Notwithstanding the discretion given to me by 5.43 of the Federal Court of Australia Act,1976 I do not' think that I should order the first respondent to pay any part of the 2. applicant's costs on a solicitor and client basis. Counsel for the applicant submits that, if an order for payment of costs on a solicitor and client basis 1s not made, his client will have to bear a heavy proportion of the costs which it has incurred. This will only be the case if the costs charged to the applicant greatly exceed the costs recoverable on a party and party basis. I do not think this is a sufficient reason for making an order for costs on a solicitor and client basis. In exercising my discretion I must have regard not only to the interests of the applicant but e also to those of the first respondent. It 1s very unusual for an order for costs to be made on a solicitor and client basis. In my experience, such an order has not previously been made in a case arising under the Trade Practices Act. I do not think that the matters relied upon in the written submissions of counsel for the applicant justify an order that the first respondent pay costs on that basis. It is true (as counsel for the applicant submits) that the damage suffered by the applicant was, ina sense, deliberately inflicted upon it by the first respondent, that the applicant attempted to mitigate its losses and that the first respondent persisted in its conduct in defiance of orders of the Court. Nevertheless, the damages awarded to the applicant were intended to cover the losses actually ancurred by the applicant as a result of the first respondent's conduct. Z. I have not referred to all the matters relied upon by counsel for the applicant in his written submissions, but none of them persuade me that I should make an order for costs on a solicitor and client basis. Quite apart from opposing the applicant's application counsel for the first respondent submit that the applicant should be ordered to pay their client's costs of and incidental to certain parts of the hearing. These parts are identified in the respondents' written submissions. It is also submitted that the first respondent should not be ordered to pay any costs of or incidental to the preparation of exhibit $(2) which was, in effect, a revised formulation of the applicant's claim for damages. It 1s submitted that this exhibit contained errors which were rectified in subsequent evidence and that the first respondent should not be called upon to pay the costs of and occasioned by the exhibit containing the erroneous material. It is true that the applicant's claim was amended from time to time. However, there was sound reason for most of the amendments. Some of the amendments were occasioned by the fact that when its claim was first formulated, the applicant was unable to make precise calculations of some of its losses, because the current season had not finished. Other amendments were made and additional information provided as a result of observations made from the bench as to the possibility of 4, making aiternative calculations of the applicant's losses. In a case as substantial and complex as the present, I think that 1t was to be expected that the applicant would pursue a number of matters and issues upon which 1t might not ultimately succeed. Whilst this occurred, it remains the fact that the applicant succeeded in obtaining a very substantial award of damages. I do not think that I should penalize the applicant because it did not succeed on every subsidiary issue or on every part of its case. Taking into account all the circumstances of the case and the way in which it was presented, I do not think that I should deprive the applicant of any part of its costs. The remaining question is the proper order which should be made in respect of the costs of the second, third, fourth and fifth named respondents. It is true that the claim for damages against these respondents was dismissed. Nevertheless, they were properly joined as respondents in the proceedings and injunctive relief was granted against them. I am not persuaded that either the applicant or any of the respondents incurred any additional costs by reason of the fact that the second to the fifth respondents remained on the record and that, at least nominally, a claim for damages was made against them as well as against the first respondent. No separate case was made on their behalf and no evidence was called referable only to their position. No time was taken up in addresses in considering their positions since counsel for S. the applicant conceded that the claim for damages against them could not succeed. In these circumstances I think that I should make no order as to their costs. For the above reasons I order that the first respondent pay the applicant's costs, and I make no order as to the costs of the second, third, fourth and fifth respondents. I certify that this and the Pour (4) preceding pages ure's true copy of the ' Reasons ror Jvtement here fof hishenour | if Mr. Justice Movling. ! Dated: (4 Oct (Kb .