Federal Court of Australia
ss JUDGMENT No. on Qrnal ost Sune
SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION
No. SG 74 of 1994
P OM_A G J EO THE FEDERAL COURT OF AUSTRALIA
ET N:
DYNASTY PTY LTD, WAYNE LETGHTON THOMAS, THOMAS CHARTERS PTY LTD and THOMAS HOTELS PTY LTD.
Appellants - and - Vv J Cc Respondent CORAM: Spender, O'Loughlin & Branson JJ PLACE: Brisbane DATE: 26 September 1995 RECEIVED 28 SEP 1995 MI OF _ORDE FEDERAL COURT OF AUSTRALIA
PRINCIPAL REGISTRY
THE COURT ORDERS THAT:
the appeal be dismissed;
the appellants pay the respondent's costs of the appeal, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
No. SG 74 of 1994
GE VIS
ON_AP L_FRO ING JU OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
S P TD, WAYNE LEIGHTON HOMAS, THOMAS CHARTERS PTY LTD d OMAS HO S Y
Appellants - and - KEVIN JOHN COOMBS Respondent CORAM: Spender, O'Loughlin, Branson JJ PLACE: Brisbane DATE: 26 September 1995
REASONS FOR DECISION
THE COURT: In this matter the respondent has sought an order of indemnity costs in respect of the unsuccessful appeal
against the decision of the Honourable Justice von Doussa.
Section 43 of the Federal Court of Australia Act 1976 gives a general power to award costs and provides in subsection (2) that "f[e]xcept as provided by any other Act, the award of costs is in the discretion of the Court or Judge". The discretion has been said to be "absolute and unfettered" but it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation (Cretazzo v Lombardi
(1975) 13 SASR 4; Australian fransport Insurance Pty Ltd
-2- & Anor v Graeme Phillips Road Transport Insurance Pty Ltd and Anor (1985) 10 FCR 177). The discretion extends to the making of an order that costs be paid on a "solicitor and client" rather than a "party and party" basis (Australian Transport Insurance Pty Ltd & Anor v Graeme Phillips Road Transport Insurance Pty Ltd and Anor) and to the making of an order that costs be paid on an indemnity basis (Australian Federation of Consumer Organisations Ine v Tobacco Institute of Australia Ltd (1991) 100 ALR 568; Thors and Ors v Weekes and Ors (1989)
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