Moss v Insurance Australia Limited [2005] FCA 87

FEDERAL COURT OF AUSTRALIA

Moss v Insurance Australia Limited [2005] FCA 87 WILLIAM WAYNE MOSS v INSURANCE AUSTRALIA LIMITED (FORMERLY NRMA INSURANCE LIMITED) N 664 OF 2003 JACOBSON J 11 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 664 OF 2003

BETWEEN: WILLIAM WAYNE MOSS

APPLICANT

AND: INSURANCE AUSTRALIA LIMITED

(FORMERLY NRMA INSURANCE LIMITED)

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 11 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. That the applicant pay the respondents costs of the proceeding in a gross sum of specified in accordance with o62 r 4(2)(c) of the Federal Court Rules in the amount of $70,000. 2. That the costs order (above at order 1) be stayed pending the determination of the applicant's appeal from the judgment and orders of Jacobson J dated 14 December 2004. 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 N 664 of 2003

BETWEEN: WILLIAM WAYNE MOSS

APPLICANT

AND: INSURANCE AUSTRALIA LIMITED

(FORMERLY NRMA INSURANCE LIMITED)

RESPONDENT

JUDGE: JACOBSON J

DATE: 11 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 I gave judgment in this matter on 14 December 2004. On that day I made an order that the application be dismissed and I indicated that I would order the applicant to pay the respondent's costs of the proceedings. However, Mr Lockhart, who appeared for the NRMA, informed me that the respondent wished to seek an order for the payment of costs on a lump sum basis in accordance with order 62 rule 4(2)(c) of the Federal Court Rules, and I therefore stood the matter over to today in order to permit Mr Lockhart to make that application. 2 The application was made by a notice of motion filed on 20 December 2004. It was supported by an affidavit of Mr Ian Stewart Wiley sworn 17 December 2004. The application came on for hearing this morning. Mr Lockhart informed me that the amount which he seeks for the gross sum of $70,000. The evidence indicates that the total amount expended by the respondent in the defence of the proceedings was approximately $183,000. 3 An unusual situation has arisen this morning. This is because Mr Moss says that he does not want the respondent to give him a discount for the amount expended, which as I have said, is about $183,000. He wants a stay of execution on the amount of the costs pending the determination of an appeal, which he has filed from my judgment. 4 I would not, in the exercise of my discretion under order 62 rule 4(2)(c) be prepared to assess the amount of the costs at $183,000. I have been provided with very helpful written submissions by Mr Lockhart, which I will place with the papers. Those submissions refer to a number of authorities on this question, and the effect of them is that the exercise of the rule contemplates a much broader brush than would be applied on taxation. Reference is made amongst the authorities to the decision of Von Doussa J in Beach Petroleum NL v Johnson (1995) 57 FCR 119. 5 Mr Lockhart obtained instructions that the respondent consents to any order for costs that I make pursuant to the rule being stayed pending the determination of the appeal from my judgment. I have explained to Mr Moss that if I order costs in the amount sought of $70,000, and if the appeal fails or is struck out, that he will be liable for the amount assessed in accordance with my order. 6 I would not be prepared on the information before me to assess costs at $183,000, but I am satisfied on the affidavit of Mr Wiley, and on what has been put to me in Mr Lockhart's written submissions, that it is appropriate for me to order costs in the amount of $70,000. 7 It does seem to me that since Mr Moss has taken the unusual course of stating that he would not oppose $183,000, and that he does not want a discount, that there is, accordingly, no opposition to the determination of the amount of $70,000. If there is no opposition to a greater sum, then it must follow that there is no opposition to the assessment of the lower amount, notwithstanding Mr Moss' insistence that he does not want any favours from the respondent. 8 Accordingly, the order I will make this morning is that the applicant pay the respondent's costs of the proceeding in a gross sum specified in accordance with order 62 rule 4(2)(c) in the amount of $70,000. The costs order which I have made is to be stayed pending the determination of the appeal from my judgment to the Full Court. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.