Case: Allstate Life Insurance Co &amp; Ors v Australian &amp; New Zealand Banking Group Ltd &amp; Ors [1995] FCA 660
Outcome: referred to
to the operation of Order 62 rule 3 upon the issues the subject of the current interlocutory proceedings, Wieland made the submission that 'an order pursuant to O 62 r 3 whereby the Court exercises its discretion as to costs requires material sufficient to warrant a departure from the general practice that costs ordered in interlocutory proceedings should await the outcome of the proceedings'. Wieland addressed Readymix's reliance on the observations of Lindgren J in Allstate Life Insurance Co. &amp; Ors v Australia &amp; New Zealand Banking Group Ltd &amp; Ors [1995] FCA 660 , where his Honour observed that 'where litigation is complex and parties may face a delay in recovering their costs there exists a basis for consideration departing from the usual course'. Wieland contended nevertheless that '[t]he applicants in these proceedings have not pointed to any basis for suggesting that these proceedings will be excessively delayed'. Contrary to that contention by Wieland however, there is persuasive force in Readymix's submission that 'one is entitled to start with the proposition that the respondent, in the conduct of its defence, has caused egregious delay' and that 'the delay in the progress of the proceedings logically delays resolution of the proceedings when the applicants would, in the ordinary course, [be] entitled to the assessment of costs awarded in its favour'. I am of the view that Readymix is entitled to an order in its favour in relation to its costs thrown away by the postponement of the final hearing, inclusive of those costs of and incidental to the present application of Readymix the subject of the notices of motions of Readymix filed respectively on 30 August 2006, 7 September 2006 and on 12 September 2006, the scope whereof I would observe tend to overlap. Whether any category of legal costs incurred by Readymix otherwise than that of a party and party basis should qualify within the scope of the order for costs is a more difficult consideration. The costs of Readymix thrown away would appear to be in principle those relating to professional work undertaken and disbursements incurred as a result of steps implemented by Readymix's legal representatives to arrange inspection of the SLP 1100 crusher then located in Melbourne and to obtain expert reports in relation thereto, including in principle costs relating to Mr Better's fees and disbursements to the extent to which the same can rightly be described as thrown away, as well as costs associated with the vacation of the hearing. Whether the costs incurred of and incidentally to the mediation incurred by Readymix should be included is a moot point, but I would disincline in principle to include in any event costs of the intervening mediation. I am further of the opinion that in the exercise of the Court's authority and discretion, pursuant to Order 62 rule 3 of the Federal Court Rules as to formulating orders as to costs at a stage of the proceedings prior to finalisation, Wieland should be ordered, in principle, to make payment forthwith of the costs the subject of the orders presently under consideration, I favour that outcome, notwithstanding that the principal proceedings are not of course concluded. My present estimate is that an amount equal to two thirds thereof would be appropriate, but I would in any event grant liberty to apply to either party on seven days' notice should injustice or imponderable uncertainty be contended to arise in relation to any such quantification. I say 'at least' because the existing order as to security shall require revision in any event, so as to exclude quantification of the costs attributable to Wieland's radical misunderstanding earlier discussed.