Case: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Outcome: cited
course, the usual rule is that costs follow the event in the absence of special circumstances justifying some other order ( Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 , Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107). The first and second respondents were unsuccessful in respect of their notice of motion. However, for very different reasons, the parties have submitted that the usual rule as to costs should not be perfunctorily applied in relation to this notice of motion. In summary: The first and second respondents have submitted that: the parties' costs of the hearings on 8 December 2008 and 20 February 2009 be costs of the notice of motion; and because, of three clear issues identified in the notice of motion, Mrs Tracy was successful in relation to two, the first and second respondents should pay one-third of Mrs Tracy's costs on a party and party basis. Mrs Tracy has submitted that: there is no question that Mrs Tracy was wholly successful in the proceedings; in the circumstances, the costs ordered in favour of Mrs Tracy should be on an indemnity basis because: Mrs Tracy had to instruct solicitors and Counsel and thereby incur legal fees and disbursements, and if only party and party costs are awarded to Mrs Tracy she will be penalised by the difference between the party and party costs awarded and the amount of her own solicitor and client costs incurred in defending the proceedings; The first and second respondents engaged in inflammatory correspondence to the Court wrongfully claiming that the filing by Mrs Tracy of her written submissions on 9 February 2009 was not contemplated when they knew that those submissions were both contemplated, and ordered by the Court. The result of that conduct was that the Court convened a directions hearing, at which hearing it emerged that the objections made by the first and second respondents were groundless; The notice of motion was commenced or continued in disregard of known facts, including that the first and second respondents had evidence that Mrs Tracy had not provided any financial support for the principal action; The notice of motion was commenced or continued for an ulterior motive, presumably for the purpose of applying pressure to Mrs Tracy or her husband the second applicant as some form of intimidation or punishment. Mrs Tracy arranged time off work in order to comply with the requirement for cross-examination as notified by the first and second respondents, which the first and second respondents subsequently advised was not necessary; The notice of motion was commenced or maintained in disregard of clearly established law, including that the first and second respondents pressed for indemnity costs against Mrs Tracy notwithstanding that the applicants in the substantive proceedings had been the subject of an order for standard costs; The proceedings have been unduly prolonged by the making of groundless contentions by the first and second respondents; and The first and second respondents persistently breached the directions made by the Court in the proceedings and thereby caused Mrs Tracy to incur greater costs than she would have incurred had they complied with the directions of the Court. Consideration