Case: Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 867 ; (1999) 164 ALR 203
Outcome: cited
According to TPI, it was on the basis of the applicant's written submissions that it prepared its own written submissions to meet the applicant's assumed case. However, on the morning of the hearing on 26 March 2008, senior counsel for the applicant, without any prior warning to the other parties or the Court, abandoned the issue estoppel argument. Instead, TPI submitted, the applicant reformulated its case in oral argument and put it on two quite different bases. The applicant relied firstly on what senior counsel for the NCC had said to Kenny J when her Honour delivered judgment in Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 867 ; (1999) 164 ALR 203. Secondly, it relied on what was said to be the proper construction of the declaratory orders thereafter made by her Honour . 7 TPI says that the applicant's case before me was conducted on this new basis and that the evidence and written submissions of all parties were thereafter rendered almost entirely irrelevant. Moreover, further written submissions were required to be filed by all parties in response to these newly identified issues. It is for that reason that TPI claims that it should be fully indemnified for the substantial costs that it incurred in preparing to meet a case that was commenced, particularised and articulated in written submissions, but then abandoned without warning on the morning of the hearing. TPI accepts that the costs of the hearing itself, and the supplementary submissions that it had to file to meet the applicant's new case, should be ordered against the applicant on the usual party-party basis. 8 In the alternative, TPI submits that the applicant's issue estoppel case was always clearly foredoomed to fail. Logically, the res judicata point had to fail as well once issue estoppel was abandoned since the latter, so it was said, was a necessary condition for the existence of the former. 12 The applicant argues that the issue regarding the construction of Kenny J's orders was always part of its case and did not involve a newly identified issue. It refers to correspondence from its solicitors to the NCC in which the solicitors referred to the NCC being "bound" by Kenny J's orders. Its own outline of submissions plainly flagged the construction argument by referring repeatedly to the actual terms of her Honour's orders. The issue regarding the construction of those orders was intertwined with whether res judicata was applicable. 13 The applicant concedes that it abandoned issue estoppel. However, it submits that this is not a sufficient basis for ordering indemnity costs. If it were, indemnity costs would be ordered routinely and parties and their legal advisers would be tempted to pursue all issues to judgment rather than face the prospect of indemnity costs for abandoning an issue no longer regarded as tenable. The applicant says that the abandonment of issue estoppel should not be taken as a concession that the doctrine had been unreasonably or improperly raised. 14 The applicant says that its res judicata claim was not one that had no chance of success, a point amply illustrated by the detailed treatment I gave this claim in my reasons for judgment. Nor was the issue estoppel claim necessarily foredoomed to fail. Indeed, the fourth undertaking proffered to the Full Court made express reference to a possible contention that Kenny J's orders gave rise to an issue estoppel. This was said in response to concerns expressed by Goldberg J that an issue estoppel might arise. 15 Finally, the applicant says that another factor weighing against TPI's application for indemnity costs is that it sought, and obtained by consent, leave to be joined as a respondent to the proceeding in circumstances where the NCC was a perfectly able contradictor and TPI made many submissions that duplicated those of the NCC. 19 The applicant's additional submission based upon counsel's "assurance" to Kenny J at the time her Honour delivered judgment had to be addressed, as indeed it was. However, the failure of this point should be the subject of an order for costs on a party and party basis, and does not warrant an order for indemnity costs. 20 For these reasons, I will order, as foreshadowed, that the applicant pay the respondents' costs, to be taxed in default of agreement. There will be no order for indemnity costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 28 May 2008 Counsel for the Applicant: Mr P.W. Collinson SC with Mr S.H. Parmenter Solicitor for the Applicant: Allens Arthur Robinson Counsel for the First Respondent: Mr P.J. Hanks QC with Mr P.R.D. Gray Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr N.J. O'Bryan SC with Mr T.J.F. McEvoy Solicitor for the Second Respondent: DLA Phillips Fox Date of Hearing: 26 March 2008 Date of Submissions: 12 and 15 May 2008 Date of Judgment: 27 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/779.html