Poyton v Retailworld Resourcing Australia Limited Partnership (No. 2) [2016] FCA 800

FEDERAL COURT OF AUSTRALIA

Poyton v Retailworld Resourcing Australia Limited Partnership (No. 2) [2016] FCA 800 Appeal from: Poyton v Retailworld Resourcing Australia Limited Partnership [2016] FCCA 1297

File number: QUD 363 of 2016

Judge: LOGAN J

Date of judgment: 8 July 2016

Catchwords COSTS – whether costs ought to be awarded on an indemnity basis – where applicant refused to accept more favourable compromise offer of respondent – where application had no reasonable prospects of success – costs awarded on indemnity basis

Cases cited: Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225

Date of hearing: 8 July 2016

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 5

Counsel for the Applicant: The applicant appeared in person. (Assisted by his brother as a McKenzie friend.)

Solicitor for the Respondent: Broadley Rees Hogan

ORDERS QUD 363 of 2016

BETWEEN: CURTIS NICHOLAS POYTON Applicant

AND: RETAILWORLD RESOURCING AUSTRALIA LIMITED PARTNERSHIP Respondent

JUDGE: LOGAN J DATE OF ORDER: 8 JULY 2016

THE COURT ORDERS THAT:

1. The applicant pay the respondent's costs of and incidental to the application, to be taxed on an indemnity basis. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

LOGAN J: 1 Application has been made by the respondent for an order that costs be taxed on an indemnity basis. That is not the usual order as to costs, but there are categories of cases in which such orders have been made. Those categories were nowhere better summarised than by Sheppard J in Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225. As his Honour recognised the categories of cases where indemnity costs might be ordered are not closed and moreover, it is essential to appreciate that the discretion in respect of costs is always one to be exercised in the circumstances of a particular case. 2 In this particular case, for the reasons given in the principal judgment, the view I formed was that the application for leave to appeal, even if made in time, was always one which was without any reasonable prospect of success at all. 3 In mid-June last year, the respondent, by its solicitors, made an offer which in effect would have seen the application consensually discontinued with no order as to costs. Dr Poyton has observed of this letter that it did not offer a detailed analysis of the perceived flaws in the application. That is true, but it did contain an offer and voice the opinion as to an absence of reasonable prospects. That position has been fully vindicated after a hearing on the merits of the application. Of course, the solicitors for the respondent could have expanded upon the rationale for the expression of opinion as to an absence of prospects, but that does not detract from the status of the letter as an offer of compromise. It may be said, also of the offer, that it was in effect an offer which was of the "drop dead" variety. Even so, it contained in it quite a concession in relation to a costs position. 4 In my view the case is for the awarding of costs on an indemnity basis. That is because even the usual, party and party order would be more favourable to the respondent than that offered by it, and further, in conjunction with that, and as I have already stated, the application is one which did not have any reasonable prospect of success. The case is one where a particular grievance, which I do not doubt was genuinely felt, has been pursued beyond a point where it ought reasonably to have been pursued, and in so doing visited quite unnecessary costs on the respondent. 5 For these reasons, the further order will be that the applicant pay the respondent's costs of an incidental to the application, to be taxed on an indemnity basis. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.