Case: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403
Outcome: cited
I confine my comments here to whether Sladojevic ought bear some of his own costs notwithstanding he was ultimately successful in defending the proceedings against him. I do so for two reasons. First, as Bell appears to have been unrepresented throughout (he has not suggested to the contrary and has not made submissions on costs) his costs in any event will be limited to out-of-pocket expenses: cf Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403; and see generally Dal Pont, Law of Costs , [7-24] ff. In these circumstances, the issue of ouster of the ordinary rule of costs following the event is of no marked significance in his case. Secondly, the conduct said to give rise to "special circumstances" was, primarily, that of Sladojevic. 12 I should preface what I have to say with the observation that I do not consider that the applicants acted unreasonably in continuing to prosecute the proceedings notwithstanding that Sladojevic's legal representatives had asserted to them from as early as March 2004 that they would fail, in what were their then claims, on the grounds of reliance and causation for reasons similar to those informing my ultimate findings in this matter. The applicants' lighting upon what was referred to as the Georgiadis letter in 2005 (a Sladojevic strategy letter: see reasons [61]) it was not apparently discovered by Sladojevic led to a significant enlargement of their claim. Notwithstanding that both Sladojevic and his legal representatives asserted at the time that its contents were fiction they would have been damning if true I am satisfied that in the circumstances the applicants unwillingness to accept those assertions at face value was not unreasonable. Such facts as had been pleaded by Sladojevic in his 2002 amended defence were calculated to put his credibility in issue from the outset. The letter could only have compounded the applicants' suspicions. 13 I do not intend to reiterate in any detail the findings I have made, and the basis thereof, in relation to Sladojevic's evidence generally, to his strategies, to false denials given (e.g. on the provenance of the "Tiltform Australia" proposal of 25 June 2000) and false assertions made, and to their respective affects on and in the conduct of the proceeding. Suffice it to say I found that he engaged in opportunistic and self serving behaviour and resorted to falsehood: cf reasons [56]. Far from being honest and open, such were the doubts his conduct and evidence raised about his credibility, that the applicants were, in my view, entitled to treat his assertions with suspicion. As I held, "his evidence on any subject not corroborated by independent documentary evidence or a reliable third party ought be regarded with caution": [56]. Equally, his abandoning of parts of his affidavit evidence in the face of clear contrary evidence was opportunistic. It merely added to the sum of misinformation, confusion or time wasting in the trial for which he was responsible. And there was a deal of this. As I said of the Vinet strategies, "documents created for the purposes of them have added very significantly to misinformation relied upon the conduct of this proceeding. Amendments were made to the pleading and cross-examination conducted on the premise that the information conveyed in such documents was correct. This resulted both in time wastage and quite a deal of confusion and contradiction for which Sladojevic principally ... bear[s] responsibility": reasons [62].