Case: Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141
Outcome: discussed
In the ordinary course costs would follow the event and, accordingly, Hansen would pay Bickfords' costs of the claim and Bickfords would pay Hansen's costs of the cross-claim: see eg Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141 at [10] . 3 As Tamberlin J observed in Stena [2007] FCA 1141 at [11] , an 'issues' approach can be adopted in certain cases: Although courts have in the past been inclined to take a broad approach by looking at the substance of the overall outcome and have been reluctant to exercise discretion to apportion costs according to parties' success or failure on particular issues (see Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201 at 208), recent authorities accept that in complex commercial matters, and particularly in patent suits where there are numerous issues, the discretion may be exercised to apportion costs concomitant with the parties' respective success or failure on certain issues: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 at 7; and see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] . 4 It is contended by Hansen that a problem with adopting the ordinary course of costs following the event is that all of the evidence led by Hansen was referable both to the claim and the cross-claim. In other words, Hansen's evidence of exposure in Australia was relevant to the claim upon which it failed and also to the cross-claim upon which it succeeded, including evidence led by Hansen of reputation after April/May 2006. Of course, in relation to the evidence of reputation after April/May 2006, the evidence of reputation led by Hansen was irrelevant to its claim, although relevant to defending the cross-claim. 5 Accordingly, taking into account the overlapping evidence on the claim and cross-claim and the difficulties this would present for the taxing officer, Hansen submits that, subject to dealing with costs covering Bickfords' unsuccessful objections to evidence and failure to admit certain facts, the order should be that each party bears its own costs of the proceeding. Hansen then proposed that in view of these actions of Bickfords, the costs order should be that Bickfords pays 30% of Hansen's costs of the proceeding. 18 As to the time spent on objections to admissibility of affidavit evidence, in many instances objections taken by Bickfords were unsuccessful. However, some objections taken were successful, and Hansen was given the opportunity during the trial to mend its hand. In particular, Bickfords' objections to Mr Alford's evidence were successful, which took up a significant part of the hearing and submissions. Nevertheless, I have come to the view that this is not a case where Bickfords was involved in 'the injudicious pursuit of issues without substance' (see eg Stena [2007] FCA 1141 at [12] ) or was involved in any unreasonable or inappropriate conduct (see eg BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [18] ). In this proceeding the evidence and its presentation were important, and Bickfords was entitled to take the objections, although some were not upheld.