Case: Stumm v Dixon &amp; Co (1889) 22 QBD 529
Outcome: applied
It is settled law that liability for payment of a costs order is ordinarily joint and several. In the present case it cannot be said that the Probiotec parties have raised a separate and distinct defence which has incurred costs that cannot be attributed to the joint conduct of the Cross Respondents in the course of this action. In Stumm v Dixon &amp; Co (1889) 22 QBD 529 at 533-534, the Court of Appeal said: 'When an action is tried against two or more defendants, and any defendant separates in his defence, and the judgment is against all, the law is that each of them is liable for the damages awarded by the judgment, and each of them is liable to the plaintiff for all costs taxed on his behalf as properly incurred by him in the maintenance of his action, except as to costs caused to him by so much of the separate defence of any defendant as is ... a defence for that defendant as distinguished from other defendants.' 25 The above principle set out in Stumm was referred to by Cooper J in Thiess Watkins White Constructions Limited (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452 at 453. 26 The final orders made in the case by way of restraint are against all Cross Respondents in relation to the relevant claims challenged. In order to make good its case on the pleadings, it was necessary for the University parties to prove the involvement of the Probiotec parties, and I note no director of any of the Probiotec parties gave evidence about the relationship between those parties and the NSI parties until after the 20 March 2007 hearing on costs. It was also necessary to counter the allegation of invalidity and appropriate to obtain a Court order, especially having regard to the fact that the undertaking as to conduct was given without admission 27 After the hearing on costs on 20 March 2007, I gave liberty to the University parties to make further written submissions, and gave leave for the Probiotec parties to file an affidavit of Mr Stringer, the Chief Executive Officer of Probiotec (Australia) Pty Ltd. That affidavit was filed the next day, on 21 March 2007. In it, Mr Stringer gives a detailed history and states that he was the person responsible for the Probiotec parties' instructions to solicitors in respect of the current proceedings. He states that he has never given instructions to Messrs Spruson &amp; Ferguson that the Probiotec parties wished to dispute the validity of the University's patents or to assist the First to Fifth Cross Respondents in their contest of the validity of the University parties' patents. His instructions are reflected in the Letter of Undertaking from Spruson &amp; Ferguson to Freehills dated 17 September 2004. In view of the conclusion which I have reached above and the reasons for that conclusion, the contents of Mr Stringer's affidavit do not persuade me that the Probiotec parties should not be jointly and severally liable for costs in this matter. Consequently, although the University parties have not, since the hearing of 20 March 2007, made written submissions in reply to either the content of Mr Stringer's affidavit or the written submissions handed up by the Probiotec parties in court on that date, in any event, in view of my conclusion, any further submissions on behalf of the University parties would not affect the outcome of my decision on costs in this matter, as the orders which I have made are in favour of the University parties. In those circumstances, there is no necessity for any further submissions on behalf of the University parties in relation to the costs question.