Case: Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224
Outcome: applied
decision in Knight v F.P. Special Assets Ltd [1992] HCA 28 ; 174 CLR 178 and its application to s 43 of the Federal Court Act was considered by the Full Court of the Federal Court in Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224. The Full Court said at 229: There seems no reason to doubt that s 43 confers upon the court jurisdiction to award costs not only against persons who are parties but also against persons who are not. Clearly the section is no narrower than the provisions of O 91, r 1 of the Rules of the Supreme Court of Queensland considered by the High Court in Knight v FP Special Assets . In Caboolture Park v White Industries [1993] FCA 471 ; 45 FCR 224 , it was argued that the Court's jurisdiction under s 43 to award costs ceased at the time that judgment was entered. It was submitted in that case that "once the original action or proceedings had been completed by entry of judgment there was no longer a 'proceeding' before the Court in respect of which a cost order could be made" (at 230). That argument was rejected by the Court as being inconsistent with the definition of "proceeding" in s 4 of the Federal Court Act which is defined to mean: ... a proceeding in a Court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal; The Court said at 230: The context of the Act provides no indication that the words defining the grant of jurisdiction in s 43 of the Act have a temporal meaning which limits the jurisdiction conferred to a jurisdiction which terminates when a judgment has been pronounced and extracted in the proceeding that has invoked the jurisdiction. The Court said at 231: What s 43 requires is that the jurisdiction to order costs be one limited to costs relating to a proceeding. In other words, there is no jurisdiction to order costs at large. There has to be or have been, within the Court's jurisdiction, instituted a proceeding. It is irrelevant, subject to the application of common law principles discussed later, that judgment has been given and entered. As I have already observed, the first argument was rejected by the Court following the decision of this Court in Caboolture Park v White Industries [1993] FCA 471 ; 45 FCR 224. His Honour then turned to consider the effect of s 1335(2). Section 24(1) of the SC Act (Vic) relevantly provided: Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court ... is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid. The Master relied upon two decisions for the second proposition that the rule was not inconsistent with s 1355(2): Myers v Elman [1940] AC 282 and Caboolture Park v White Industries [1993] FCA 471 ; 45 FCR 224. I am not sure how those cases support the proposition that there is no conflict between the Rules of Court of the Supreme Court of the Northern Territory and s 1335(2) of the Corporations Act . The first case stands for the proposition that the High Court in England has power to order a solicitor to indemnify a party who has been injured by the solicitor's default. The power rests upon the Court's jurisdiction over its own officers. That proposition can no longer be doubted. The second case, a decision to which I have already referred, is authority for the proposition that the Federal Court has the power to award costs against a non-party and, in that case, the solicitors for a party. The power to award costs against a non-party, and in particular against a solicitor, are not the questions in issue. The question, further refined, is whether the Court can award costs against a legal practitioner who is a non-party. The Master, it seems to me, with respect, did not address that issue. The categories of costs in which a court may order a non-party to pay costs are not closed: Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 396 ; (2002) 125 FCR 488. In that case, at [62] the Court said: There are certain categories of cases in which the jurisdiction to award costs against a non-party has been exercised, if not frequently, then with some degree of regularity. One such category is where the non-party is considered to be the "real party" to the litigation: Knight v Special Assets at 188 per Mason CJ and Dean J. Another is where the non-party is a legal representative of a party to the proceedings. A costs order may be made, for example, against a solicitor in consequence of his or her conduct in the litigation: Caboolture Park at 231. While s 43 of the Federal Court Act empowers the Court to make a costs order against a legal representative of a party, a second source of jurisdiction is the "implied", "accrued" or "inherent" jurisdiction of the Court over its own officers: Caboolture Park at 231.