CATCHWORDS PRACTICE AND PROCEDURE - costs - claim could have been prosecuted in court of lesser jurisdiction - appropriate scale for taxation of costs. THE GREEN TEAM (W.A.) PTY. LTD. (A.C.N. : 050 892 423) V. BRULEE PTY. LTD. (A.C.N. : 009 066 255) AND SHIRLEY MARGARET WHITE AND GEOFFREY THOMAS WHITE WAG198 OF 1992 LEE J. PERTH 1 NOVEMBER 1995 IN THE FEDERAL COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG198 OF 1992 B E T W E E N: THE GREEN TEAM (W.A.) PTY. LTD. (A.C.N. : 050 892 423) Applicant and BRULEE PTY. LTD. (A.C.N. : 009 066 255) Second Respondent and SHIRLEY MARGARET WHITE and GEOFFREY THOMAS WHITE Third Respondents MINUTE OF ORDER JUDGE MAKING ORDER: LEE J. DATE OF ORDER: 1 NOVEMBER 1995 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The third respondents pay the applicant's costs to be taxed on the scale appropriate for an action brought in the Local Court of Western Australia. 2. The applicant pay the second respondent's costs to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG198 OF 1992 B E T W E E N: THE GREEN TEAM (W.A.) PTY. LTD. (A.C.N. : 050 892 423) Applicant and BRULEE PTY. LTD. (A.C.N. : 009 066 255) Second Respondent and SHIRLEY MARGARET WHITE and GEOFFREY THOMAS WHITE Third Respondents CORAM: LEE J. DATE : 1 NOVEMBER 1995 PLACE: PERTH REASONS FOR JUDGMENT Judgment was entered in favour of the applicant against the third respondents in the sum of $26,000 on 28 September 1995. The applicant's claim against the second respondent was dismissed. The parties were instructed to file written submissions in respect of the appropriate orders for costs. In the submissions filed by the parties the applicant sought an order that the third respondents pay the second respondent's costs. The second respondent sought an order that the applicant pay its costs including costs taxed "on indemnity basis" in respect of the instruction of experts to provide reports on the state of the subject property and the cost of repairs thereto. The third respondents submitted that according to the amount for which the applicant obtained judgment the matter should have been prosecuted in the Local Court of Western Australia and the costs recovered by the applicant from the respondents should be taxed on the scale applied by that court. The third respondents also submitted that there should be a reduction of the applicant's costs to reflect the failure of the applicant to make out part of its claim of loss and as a penalty for failing to adhere to directions of the Court as to the due presentation of experts' reports. Having read the submissions I am satisfied that there should be an order that the third respondents pay the applicant's costs to be taxed on the scale appropriate for an action brought in the Local Court of Western Australia. It should have been apparent to the applicant that any reasonable assessment of its loss would be unlikely to be in an amount that exceeded the jurisdiction of the Local Court. At an early stage the Court raised the question whether the matter should be transferred to another court of appropriate jurisdiction. The applicant opposed such an order. Whether the opposition of the applicant was justified in the circumstances is now beside the point in determining what is the proper order for costs. The outcome of the trial is that the claim could and should have been prosecuted in a lower court and unless there is cause to order otherwise the applicant should not recover costs on a higher scale than it would have received in the appropriate court. The applicant must have been aware that the prosecution in this Court of litigation appropriate for a court of lesser jurisdiction could have consequences in the costs order. With respect to the third respondents' claim for further reduction of the applicant's costs, the claim cannot be sustained. It is not possible to separate as a discrete element of the trial the question of the applicant's claim for the loss of rental income. It was a minor matter dealt with in the running of the trial and any evidence in respect of the issue was sparse. No foundation has been established for reduction of the costs recovered by the applicant from the third respondents by reason of the applicant's late delivery of reports prepared by experts. The delay had no effect on the conduct of the trial. This is not a case where the applicant studiously ignored directions made by the Court obliging the Court to consider whether the costs the applicant may otherwise obtain against the third respondents should be altered to provide an appropriate penalty for that conduct. With regard to the second respondent's claim for "indemnity costs" in respect of "wasted expert's costs" the steps taken by the second respondent to prepare its case as to the measure of loss sustained by the applicant were appropriate in the circumstances. Those steps remained appropriate whether or not the applicant disclosed that the property had been sold. No ground has been made out for the making of an indemnity order in respect of that aspect of the second respondent's costs. With regard to the applicant's claim that the third respondents should be required to pay the costs of the second respondent, I am not satisfied that it is appropriate to make such an order or to order that the third respondents indemnify the applicant in respect of those costs. The applicant made its own choice to join the second respondent in the proceeding. The defence of the third respondents did not suggest that liability, if any, lay with the second respondent thereby obliging the applicant to join the second respondent as a matter of prudence. The applicant conceded that if it had no claim against the third respondents it had no claim against the second respondent. For its own reasons the applicant chose to pursue an action against the second respondent. There will be orders accordingly. I certify that the preceding four (4) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: Date: Solicitors for the Applicant: Bostock & Ryan Solicitors for the Second Respondent: Phillips Fox Solicitors for the Third Respondents: A.C. Thorpe & Co. Date of Judgment : 1 November 1995