Trade Practices - application under s.82 and accrued jurisdiction - judgment in favour of applicant - form of judqment - whether injunctive relief appropriate Costs - applicant unsuccessful in many of the issues raised by him - whether entitled to costs of the action - award of costs in discretion of Court - summary of principles upon which discretion exercised Trade Practices Act 1974 s5.80(4) Federal Court of Australia Act 1976 5.43 KIMBERLEY JOHN HUGHES Vv. WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC. ) and MI. LAWLEY DISTRICT CRICKET CLUB (INC.); MELVILLE CRICKET CLUB (INC.); NORTH PERTH CRICKET CLUB (INC.); SUBIACO FLOREAT CRICKET CLUB (INC.); BAYSWATER-MORLEY CRICKET CLUB (INC.); PERTH CRICKET CLUB (INC. ); FREMANTLE DISTRICT CRICKET CLUB (INC.); CLAREMONT-COTTESLOE CRICKET CLUB (INC.); SOUTH PERTH CRICKET CLUB (INC. ); MIDLAND-GUILDFORD CRICKET CLUB (INC.); WANNEROO DISTRICT CRICKET CLUB (INC. ) and LESLIE ANNISON (sued on behalf of himseif and all other members of the Southern District Cricket Club); GREGORY BUNNEY (sued on behalf of himself and all other members of the Scarborough Cricket Club); MICHAEL SNELL (sued on behalf of himself and all other members of the Nedlands Cricket Club); BON eee weep nie -ay 2. PHILLIP CLIFFORD (sued on behalf of himself and all other members of the University Cricket Club) and KEVIN MORRIS TAYLFORTH (sued on behalf of himself and all other members of the Cricket Council of Western Australia Australian Cricket Association (Inc.} No. WA Gi4 of 1986 TOOHEY J. PERTH 11 NOVEMBER 1986 i | IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA Gl4 of 1986 ~~~ ye ew BETWEEN: KIMBERLEY JOHN HUGHES Applicant and WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC. ) First Respondent and MI. LAWLEY DISTRICT CRICKET CLUB (INC. ) MELVILLE CRICKET CLUB (INC. ); NORTH PERTH CRICKET CLUB (INC.); SUBIACO FLOREAT CRICKET CLUB (INC. ); BAYSWATER-MORLEY CRICKET CLUB (INC.); PERTH CRICKET CLUB (INC.); FREMANTLE DISTRICT CRICKET CLUB (INC.); CLAREMONT-COTTESLOE CRICKET CLUB (INC); SOUTH PERTH CRICKET CLUB (INC. ); MIDLAND-GUILDFORD CRICKET CLUB (INC); WANNEROO DISTRICT CRICKET CLUB (INC) Second Respondents and LESLIE ANNISON (sued on behalf of himself and all other members of the Southern District Cricket Club); GREGORY BUNNEY (sued on behalf of himself and all other members of the Scarborough Cricket Club); MICHAEL SNELL (sued on behalf of himself and all other members of the Nedlands Cricket Club); PHILLIP CLIFFORD (sued on behalf of himself and all other members of the University Cricket Club) Third Respondents and | wr Ty «perm oe te ee KEVIN MORRIS TAYLFORTH (sued on behalf of Himself and all olher twembers of Lhe Cricket Council of Western Australian Australian Cricket Association (Inc.)) Fourth Respondent MINUTE OF ORDER JUDGE MAKING ORDER: TOOHEY J. DATE OF ORDER: 11 November 1986 WHERE MADE: Perth THE COURT ORDERS : 1. A declaration that r.2:38:1 of the Cricket Council is void; A declaration that the applicant has not been lawfully disqualified by reason of the operation of the provisions of r.2:38:1 of the Cricket Council; A declaration that the decision of the first, second and third respondents on 4 November 1985 to amend r.2:38:1 of the Cricket Council constituted an understanding between those respondents which contravened s.45(2)(a)(i) of the Trade Practices Act 1974; Damages in the sum of $250.00 against the respondents other than SUBIACO FLOREAT CRICKET CLUB (INC.), CLAREMONT-COTTESLOE CRICKET CLUB (INC.), GREGORY BUNNEY (sued on behalf of himself and all other members of the Scarborough Cricket Club), PHILLIP CLIFFORD (sued on behalf of himself and ail SOS t gra ety pees ere weve ee or Ww other members of the Universitv Cricket Club) and the fourth respondent: An order that the respondents except SUBIACO FLOREAT CRICKET CLUB (INC.), CLAREMONT-COTTESLOE CRICKET CLUB (INC.), GREGORY BUNNEY (sued on behalf of himself and all other members of the Scarborough Cricket Club) and PHILLIP CLIFFORD (sued on behalf of himself and all other members of the University Cricket Club) pay 75% of the applicant's costs including all costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. SON yet ee eerpo o oes Vere ae a' IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G14 of 1986 BETWEEN: KIMBERLEY JOHN HUGHES Applicant and WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC. ) First Respondent and ME. LAWLEY DISTRICT CRICKET CLUB (INC. ) MELVILLE CRICKET CLUB (INC.); NORTH PERTH CRICKET CLUB (INC.); SUBIACO FLOREAT CRICKET CLUB (INC. ); BAYSWATER-MORLEY CRICKET CLUB (INC.); PERTH CRICKET CLUB (INC.); FREMANTLE DISTRICT CRICKET CLUB (INC.); CLAREMONT-COTTESLOE CRICKET CLUB (INC); SOUTH PERTH CRICKET CLUB (INC.); MIDLAND-GUILDFORD CRICKET CLUB (INC); WANNEROO DISTRICT CRICKET CLUB (INC) Second Respondents and LESLIE ANNISON (sued on behalf of himself and all other members of the Southern District Cricket Club); GREGORY BUNNEY (sued on behalf of himself and all other members of the Scarborough Cricket Club); MICHAEL SNELL (sued on behalf of himself and all other members of the Nedlands Cricket Club); PHILLIP CLIFFORD (sued on behalf of himself and all other members of the University Cricket Club) Third Respondents and a rat wr pe mn KEVIN MORRIS TAYLFORTH (sued on behalf of himself and all other members of the Cricket Council of Western Australian Australian Cricket Association (Inc.)) Fourth Respondent CORAM: TOOHEY J. 11 November 1986 REASONS FOR JUDGMENT On 27 October 1986 I handed down reasons for judgment and directed the parties to bring in minutes of the judgment they thought appropriate to give effect to those reasons. They did so and on 4 November counsel made submissions as to the appropriate form of judgment. There was little dispute between them as to the form of declaratory relief. There was an issue as to whether injunctive relief was appropriate and a sharply debated issue on the question of costs. I attach to these reasons a minute of the judgment I propose to enter. With slight variations it is in accord with the applicant's minute so far as declaratory relief and damages are concerned. I think it inappropriate in what is a final judgment. after a lengthy hearing on questions of law and fact to include a liberty to apply provision as appeared in the applicant's minute, particularly as no justification was offered for the inclusion of such a provision. The applicant seeks an injunction * nO rt terre ' . wy ger ce ne ye oy Sr ee ve _ a "... prohibiting each of the Respondents by themselves, their servants or aqents from taking any steps to interfere with the eligibility of the Applicant for selection to play District Club Cricket in the State of Western Australia by reason of the Applicant's participation in tour matches in South Africa between November 1985 and February 1987". Counsel for the applicant did not argue for the injunction on the basis that there was evidence that any of the respondents might take some further step to interfere with the applicant's eligibility to play district cricket notwithstanding that the rule of the Cricket Council having the effect of disqualifying the applicant from playing district cricket had been declared void. But counsel pointed to sub-s.80(4) of the Trade Practices Act 1974 which empowers the Court to grant an injunction restraining a person from engaging in conduct, whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind. Although the scope of the power to grant an injunction has been expressed broadly, I am of opinion that the Court should not grant an injunction unless it is likely to serve some purpose. It may be, for instance, that in a particular case an injunction will be of benefit to the public by marking out the Court's view of the seriousness of a respondent's conduct. I do not think any purpose is likely to be served by an injunction in the present case. Furthermore the injunction sought by the applicant is in such wide terms that it may catch conduct wp et meee weer port moer arr ees pee gare 4. on the part of ' the respondents which was not the subject of the litigation and certainly not the subject of anv findings by the Court in the applicant's favour. I appreciate that such an injunction was granted on an interim basis when the proceeding began but that of itself does not warrant a permanent injunction in similar terms. In any event that interim injunction was not extended. . As to costs, the applicant seeks an order that the respondents (other than those expressly excepted) pay his costs ancluding all reserved costs. The respondents' minute seeks an order "that the parties pay their own costs of the proceedings". That would be a strange order as counsel for the respondents acknowledged at the outset of his submissions. What the respondents in truth seek is an order that there be no order as to costs. Alternatively, counsel for the respondents submitted, any order for costs in the applicant's favour should be a very small percentage. The basis of this submission was that the applicant had failed on more issues than he had succeeded, that much of the time of the hearing had been taken up with issues on which the applicant had failed and that in all the circumstances it was appropriate, not merely to deprive the applicant of some proportion of his costs, but to award costs to the respondents of those issues on which they had succeeded. Recognising that such an adjustment must necessarily be to some extent arbitrary, counsel for the respondents submitted that justice would be done if there were no order for costs. _ se ae re ee ee ey oe oa oth nee pret ee pe nee ene ee tye ee ow OF ee Z a tree 3 — Sub-section 43(2) of the Federal Court of Australia Act 1976 vests the award of costs "in the discretion of the Court or Judge". The Federal Court Rules do not purport to qualify that discretion. The only rule to which reference is necessary is 0.62 r.15 whereby, when costs are reserved, those costs follow the event "unless the Court or a Judge otherwise orders". The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey £1920] 2 K.B. 47. 2. Where a litigant has succeeded only upon a_ portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar £18931 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues- but may be ordered as well to pay the other party's costs of them. In aera ee ee er Piehatadeds a 6. " this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at 12. There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J. in Cretazzo v. Lombardi at 16. His Honour sounded what he described as "a note of cautious disapproval" of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented: "But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to casts in respect of issues upon which he may have succeeded, based merely on his success in those particular issues". In the present case it is true that if one took a head count of the causes of action pleaded in the statement of claim, the applicant failed on more than he succeeded, and by some margin. Nevertheless, the applicant succeeded in his primary aim viz. to challenge the operation of r.2:38:1 of the rules of the Cricket Council in so far as the rule operated to preclude him from plaving district cricket by reason of his participation in the South African tours. It 1s relevant, but not conclusive, to consider how much time of the hearing was taken up with evidence and submissions relating to those issues on which the applicant failed. This is not an easy task because much of the evidence bore upon more than one cause of action. Counsel for the applicant did offer some dissection of time spent, by reference to the evidence of particular witnesses and to addresses and noted what he contended was the relatively little time taken up in addresses on those issues on which the applicant failed. There is one issue on which the applicant failed that was fairly discrete, both as to evidence and submissions. It was the unsuccessful contention that the incorporated clubs were trading corporations. Evidence adduced on both sides by affidavits and of the cross-examination of witnesses related expressly to that matter. So too did much of the documentation tendered by the applicant. Neither counsel made an assessment of the time taken. It is fair to say that in terms of evidence (including the hearing of objections by the respondents to the applicant's affidavits, more of which objections failed than succeeded), not less than three days were occupied on the matter. It is important to stress that it was an issue on which both sides ete yen re Store 8 epee aye : nts a rea called evidence. through their affidavits and through cross-examination and re-examination. The preparation of that part of the case 15 an additional consideration. It would be difficult to apportion the time taken in evidence and in submissions between the claim that there was an exclusionary provision (on which the applicant succeeded) and the claim that there was a substantial lessening of competition (on which he failed). Some claims on which the applicant failed e.g. the right to work, the claim under the Equal Opportunity Act 1984 and the claim based on the deed of settlement occupied very little time in evidence and not a great deal in argument. Other claims on which the applicant failed e.g. procedural ultra vires, conspiracy, bad faith and bias involved evidence as well as arguments of law. In my view it would be unsatisfactory to attempt to apportion issues and leave the fixing of costs of those issues to the taxing officer. That would impose a very great burden on him and upon the parties' legal representatives. I approach the matter on the basis that the applicant succeeded substantially in what he set out to achieve through his application. He failed on some issues in circumstances where, not only should he not have the costs of those issues, but there should be some compensation to the respondents for the time taken in meeting those issues both prior to and at the hearing. TNE ae ea a aa TT ee ee PE MS NE PUT OTE Tt we ee peepee oe eee i re wt " 9. In my view wustice would be served by awarding the applicant 75% of his costs. Those costs will include reserved costs. There were some interlocutory steps taken in which particular orders were made in relation to costs and of course those orders stand. I certify that this and the preceding eight pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Toohey [4 : y Associate Dated: 11 November 1986 aeor