In the Matter of ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No 2) [2008] FCA 1184

FEDERAL COURT OF AUSTRALIA

In the Matter of ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No 2) [2008] FCA 1184

COSTS – successful party – positivist or interpretivist approach

Akira Kurosawa, Rashomon (1950) W D Roth and J D Mehta, "The Rashomon Effect: Combining Positivist and Interpretivist Approaches in the Analysis of Contested Events" (2002) 31 Sociological Methods & Research 131 SIMON ALEXANDER WALLACE-SMITH (IN HIS CAPACITY AS DEED ADMINISTRATOR OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD))

vid 295 of 2007

FINKELSTEIN J

8 AUgust 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY vid 295 of 2007

IN THE MATTER OF ACN 005 408 462 PTY LTD (FORMERLY TEAC aUSTRALIA pTY lTD) SIMON ALEXANDER WALLACE-SMITH (IN HIS CAPACITY AS DEED ADMINISTRATOR OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD))

Plaintiff

JUDGE: FINKELSTEIN J

DATE OF ORDER: 8 AUGUST 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Order 3 of the orders made on 26 June 2008 be recalled and in lieu thereof it be ordered that the plaintiff's costs be paid by Gavin Muir Pty Ltd and Ashley Muir. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY vid 295 of 2007

IN THE MATTER OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD) SIMON ALEXANDER WALLACE-SMITH (IN HIS CAPACITY AS DEED ADMINISTRATOR OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD))

Plaintiff

JUDGE: FINKELSTEIN J

DATE: 8 AUGUST 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is a nice dispute between Mrs Muir and the deed administrator about costs. 2 In their respective submissions each side takes the position that he or she was substantially successful in the application. Mrs Muir claims success on the basis that the deed administrator was unable to establish that she was a party to the improper purpose that motivated her late husband to get rid of TEAC's assets. Yet, she failed in her attempt to keep from inspection all her documents that would otherwise be protected by legal professional privilege. For his part, the deed administrator contends that he was largely successful. His argument is that he won at least in a practical sense because he got his hands on most of the documents over which privilege had been claimed. 3 The parties' approach seems to be an example of the so-called Rashomon effect, after Akira Kurosawa's Rashomon (1950): see eg W D Roth and J D Mehta, "The Rashomon Effect: Combining Positivist and Interpretivist Approaches in the Analysis of Contested Events" (2002) 31 Sociological Methods & Research 131. That is, the parties are engaging in what sociologists describe as an interpretivist approach to an event (in this case litigation), in which they do not seek an objective truth but instead unravel the meaning of what has occurred through their version of the truth as shaped by their understanding and perception of the world. 4 Under our legal system a judge is required to adopt a positivist approach and search for a true explanation of an event, an explanation which can be tested by some scientific or intellectual standard. (I say nothing about the capacity of a judge to meet that standard). Applying the positivist standard, I am compelled to the conclusion that each party has had both a measure of success and a measure of failure. So it is only fair that each party should bear his and her own costs. 5 Accordingly, the costs order previously made will be recalled. In lieu thereof I will order that "The plaintiff's costs be paid by Gavin Muir Pty Ltd and Ashley Muir". I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.