JOBGMENT No. 612. lam IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G125 of 1984 GENERAL DIVISTON ) BETWEEN: QUEENSLAND WIRE INDUSTRIES PTY. LTD. Applicant AND: THE BROKEN HILL PROPRIETARY COMPANY LIMITED First Respondent AND: AUSTRALIAN WIRE INDUSTRIES PROPRIETARY LIMITED Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 4 NOVEMBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. NOTE: The whole of the respondents' costs of the proceedings, including reserved costs, be taxed and that the applicant pay 70 per cent of those taxed costs. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G125 of 1984 GENERAL DIVISION ) BETWEEN: QUEENSLAND WIRE INDUSTRIES PTy. LTD. Applicant AND: THE BROKEN HILL PROPRIETARY COMPANY LIMITED First Respondent AND: AUSTRALIAN WIRE INDUSTRIES PROPRIETARY LIMITED Second Respondent PINCUS J. 4 NOVEMBER 1987 EX TEMPORE REASONS FOR JUDGMENT In this matter the parties are at one as to the principles to be applied and 1t appears to me that they concur in accepting the correctness of what is stated by Toohey J. in Hughes v. Western Australian Cricket Association (Inc.) (1986) A.T.P.R. 40-748. His Honour at p.48,136 set out ina summary way his understanding of the effect of the decisions, and said: "Ll. 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. Farguhar (1893) 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 ' 2. party's costs of them. In 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 p.12." His Honour also gave references to authorities supporting each of those rules. In the South Australian case to which his Honour referred, Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4, at p.16, Jacobs J. drew attention to the undesirability of dissuading a party "by the risk of costs from canvassing all issues however doubtful which might be material to the decision of the case." It 1S argued, as against that, that justice may be at some risk if parties are overly encouraged to raise issues on which they have little chance of success. The present case 1s rather an unusual one, in that the applicant failed because I acceded to a submission made on behalf of the respondents with respect to the law applicable However, 1t was necessary to consider that submission against the background of the whole of the facts relevant to it and it seems to me that, had there been nothing in the case other than that submission, 1t would still have been necessary for the parties to place before me a great deal of material. On the other hand, it has to be conceded, I think, in favour of the applicant that confining attention to what ultimately became the issue in the case must have substantially shortened the matter, by excising the issues on which the respondents failed. ' 3. When I listed the case for discussion of costs, I did not have a firm view as to what should occur, and my opinion now is rather a hesitant one, because (as I mentioned during the course of argument) it is a little unusual to deprive a successful party of an order for full costs. If one is to apply the principles laid down in the authorities to which I have already referred, however, 1t seems that, while unusual, an order recognizing success on particular issues, on the part of the side which is unsuccessful overall, is an order which sometimes should be made. I can see no particular reason in the conduct of the matter on behalf of the applicant nor in the circumstances of the whole case, for not applying 1n its favour the principle which 1s vreferred to by Toohey J. as no. 3. I do not, however, propose to make an order requiring the respondents to pay any of the applicant's costs; nor da I propose, as Mr. Gore suggested I might comsider doing, to discriminate between the costs of the trial and the costs of the whole proceeding. It appears to me that the order which should be made is that the respondents have 70 per cent of their casts. That is, I will order that the whole of the respondents' costs of the proceedings, including reserved costs, be taxed and that the applicant pay 70 per cent of those taxed costs. t certify that this and the 2 preceding Pages are a true copy cf the reasons for judgment herein of His Honour Mr Justice Pincus Assoriate Dated 4 November [9&7 ) - JUDGMENT No. 6155. f.Bam IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G125 of 1984 GENERAL DIVISION ) BETWEEN: QUEENSLAND WIRE INDUSTRIES PTY. LTD. Applicant AND: THE BROKEN HILL PROPRIETARY COMPANY LIMITED First Respondent AND: AUSTRALIAN WIRE INDUSTRIES PROPRIETARY LIMITED Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 4 NOVEMBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. NOTE: The whole of the respondents' costs of the proceedings, including reserved costs, be taxed and that the applicant pay 70 per cent of those taxed costs. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. party's costs of them. In 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.8.R. 4 at p.12." His Honour also gave references to authorities supporting each of those rules. In the South Australian case to which his Honour referred, Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4, at p.16, Jacobs J. drew attention to the undesirability of dissuading a party "by the risk of costs from canvassing all issues however doubtful which might be material to the decision of the case." It 1s argued, as against that, that justice may be at some risk if parties are overly encouraged to raise issues on which they have little chance of success. The present case 1s rather an unusual one, in that' the applicant failed because I acceded to a submission made on behalf of the respondents with respect to the law applicable. However, 1t was necessary to consider that submission against the background of the whole of the facts relevant to it and it seems to me that, had there been nothing in the case other than that submission, it would still have been necessary for the parties to place before me a great deal of material. On the other hand, i has to be conceded, I think, in favour of the applicant that confining attention to what ultimately became the issue in the case must have substantially shortened the matter, by excising the issues on which the respondents failed.