Jones v T R Flanagan Smash Repairs Pty Ltd [2000] FCA 1232

FEDERAL COURT OF AUSTRALIA

Jones v T R Flanagan Smash Repairs Pty Ltd [2000] FCA 1232

PRACTICE AND PROCEDURE – appeal from order for costs – lack of resources is not justification for departure from general rule that costs follow the event. BRUCE JONES V T R FLANAGAN SMASH REPAIRS PTY LTD AND AUTO-QUOTE AUSTRALIA PTY LIMITED NG 500 of 2000 JUDGES: BEAUMONT, WHITLAM & EMMETT JJ DATE: 28 AUGUST 2000 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 500 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: BRUCE JONES

APPELLANT

AND: T R FLANAGAN SMASH REPAIRS PTY LTD

FIRST RESPONDENT

AUTO-QUOTE AUSTRALIA PTY LIMITED

SECOND RESPONDENT

JUDGES: BEAUMONT, WHITLAM & EMMETT JJ

DATE OF ORDER: 28 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant to pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 500 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: BRUCE JONES

APPELLANT

AND: T R FLANAGAN SMASH REPAIRS PTY LTD AND AUTO-QUOTE AUSTRALIA PTY LTD

RESPONDENTS

JUDGES: BEAUMONT, WHITLAM & EMMETT JJ

DATE: 28 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J: 1 This is an appeal brought as of right from an order for costs made in proceedings for infringement of copyright. The appellant appeared before us today unrepresented, and also appeared before the trial Judge as an unrepresented party. The respondents below were successful on all issues which were litigated before the primary Judge and accordingly costs followed the event. 2 The appellant has argued earnestly before us today that there are special circumstances which should have justified a departure by the primary Judge from the usual rule that costs follow the event. A number of matters were mentioned but the principal basis for the appeal, as I followed the argument, is that the appellant lacks the resources to meet an order for costs. I am prepared to accept for the purposes of the argument that the order for costs could be substantial. The failed hearing before his Honour extended over a period of three days and there were previous interlocutory proceedings in which costs were reserved but by virtue of the rules of the Court, the costs thus reserved will be picked up in his Honour's final order for costs of the proceedings. 3 It does appear that the length of the proceedings might in part be attributable to the lack of legal expertise inevitably occurring as a result of the form of representation of the appellant before the primary Judge. But putting that aside (as I think one must when the matter comes before an appellate court in the form of an appeal against an order for costs), as was indicated in the course of argument, it is only in a rare case that it would be appropriate for an appellate court to interfere with the exercise by the primary Judge of that discretion in respect of costs. Moreover, the general rule is that an appellate court will not interfere with the exercise of any judicial discretion unless it appears that some vitiating error was made in the exercise of the discretion, or unless the appellate court is persuaded that the order stands outside the limits of sound discretionary judgment. As has been said, the respondents were successful on all issues which were litigated, including an attempt by the appellant to raise a number of claims in substance by way of cross claim. 4 In those circumstances, in my view, the primary Judge was correct in ordering that costs follow the event. There were, as I understood the argument, no special circumstances of the kind which would justify departure from the usual rule. I will not attempt to catalogue all the matters that were mentioned by the appellant before us as reasons for departing from the usual rule. They covered a wide range of considerations but as has been said, the principal ground for complaint is that his Honour did not have regard to the financial circumstances of the appellant. 5 I cannot accept that this is a reason for our intervention. In the first place, his Honour was informed at an early stage of the proceedings of the appellant's lack of resources. In any event, a lack of resources cannot by itself, in my view, constitute a reason for departing from the usual rule. For those reasons, in my opinion the appeal must be dismissed with costs.