Case: Dibb v Avco Financial Services Limited [2000] FCA 1785
Outcome: cited
The parties agree on many of the factors to be taken into account in the exercise of the Court's discretion to make an order under rule 1. As discussed in the authorities which consider O 62A r 1 and the equivalent provision in the Federal Magistrates Court Rules, the factors include: &#8226; the timing of the application ( Sacks v Permanent Trustee Australia Ltd [1993] FCA 502 ; (1993) 45 FCR 509 at 511 per Beazley J; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [48] per Barnes FM; Minns v State of NSW (No. 2) [2002] FMCA 197 at [9] per Raphael FM]); &#8226; the complexity of the factual or legal issues raised in the proceedings ( Hanisch at 387 per Drummond J; Dibb v Avco Financial Services Limited [2000] FCA 1785 at [15] per Sackville J); &#8226; the amount of damages that the applicant seeks to recover ( Hanisch at 387) and the extent of any other remedies sought ( Flew at [48]); &#8226; whether the applicant's claims are arguable and not frivolous or vexatious ( Flew at [15]); &#8226; the undesirability of forcing the applicant to abandon the proceedings ( Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 148 per Wilcox J; Flew at [9]); and &#8226; whether there is a public interest element to the case ( Woodlands at 146; Flew at [23], [47]). 7 Virgin contends that, in addition, the Court should take into account: &#8226; the costs likely to be incurred by the parties in the preparation for, and hearing of, the matter ( Flew at [48]); &#8226; whether the party opposing the making of the order has been uncooperative and/or has delayed the proceedings ( Dibb at [17]; Hanisch at 390); and &#8226; '... any other matters which may go towards establishing that there should be a departure in advance from the usual rules as to quantification of the amount of costs to be payable by the ultimately unsuccessful party ' ( Flew at [48]). 39 A deterrent effect of a potential adverse costs order is insufficient of itself to warrant an order under O 62A r 1 ( Dibb at [16]; Flew at [52]). Virgin says each applicant must establish that he will be ' prevented or inhibited from conducting his case ' if no order is made ( Dibb at [16]). Virgin submits that, while not determinative of the entitlement to an order, the applicants need to establish that they would be forced to abandon the litigation. It is not sufficient, Virgin says, that the applicants do not want to be exposed to an order for costs in the ordinary course if they are unsuccessful. 50 The applicants have not established that they would be forced to abandon the litigation if no order were made capping the costs. A large proportion of applicants in the Court are concerned at the possibility of being required to pay costs if they are unsuccessful ( Dibb at [16] per Sackville J). However, I accept that these applicants would be inhibited or reluctant to continue the litigation if there were no order made under O 62A r 1. In circumstances where neither applicant seeks a monetary outcome from the litigation, I do not see that their inhibition or reluctance to continue the proceedings for the reasons given to be unreasonable or irrelevant. 51 Mr Ferguson is unlikely to be able to meet any substantial costs order. It is not apparent that, even if he were made bankrupt, he would be able to do so. The maximum costs order that he seeks directly relates to the indemnity provided under the grant to him of legal aid. Mr Corcoran is in no different a position from many applicants in the Court. He has sufficient assets to meet a costs order but is disinclined to put them at risk. The difference between his position and that of other litigants is that he will receive no financial gain if he succeeds in obtaining the orders sought. While, if successful, he would be able to fly on Virgin without a carer, he is presently able to fly on other airlines without that extra cost.