Collector of Customs v. Reg Russell and Sons Pty Ltd (31 August 1995)
FED No. 562/95(Decision by: Nicholson J)
Between: Collector of Customs
And: Reg Russell and Sons Pty Ltd
Judge:
Nicholson J
Subject References:
Procedure
Judgment date: 31 August 1995
Perth
Decision by:
Nicholson J
1. Judgment was given in this matter on 23 June 1995 and these reasons relate to the costs of the proceeding. The judgment allowed the appeal so far as it related to a rebate in relation to diesel fuel used in the transport of sheep to wharves but dismissed the appeal so far as it related to the use of diesel fuel for the transport of sheep to feed lots. Because the appeal was successful in part only, it is not appropriate that costs follow the event.
2. It is not in dispute that the Court has a general discretion in relation to costs under s43 of the Federal Court of Australia Act 1976 or that, in exercising the discretion, the Court must act judicially: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48,134 at 48,136. The real point of the argument is to properly identify those factors which must weigh in the judicial exercise of the discretion.
3. For the applicant it is contended that if either party were to obtain a preferential costs order over the other it should be the applicant because it is the applicant who has succeeded on one broad question, thus justifying its application to have part of the Tribunal decision overturned. It is contended that the additional costs flowing from the issue on which the applicant did not succeed would not have contributed 50% of the total costs because of the commonality of factual and legal matters with which the two issues were concerned. This is supported by reference to the decision of Carr J in State of Western Australia and Others v Minister for Aboriginal and Torres Strait Islander Affairs (Carr J, 24 May 1995, unreported) where his Honour said, in reliance upon Wilcox J in Lewis v Cummings (Wilcox J, 29 May 1992, unreported) that "it may be a mistake to dissect too much and one needs to make a broad judgment as to what is reasonable in the whole of the circumstances." Adopting such approach, it is submitted for the applicant that the appropriate costs outcome is that there should be no order for costs, with the effect that each side bears its own costs.
4. On the other hand it is submitted for the respondent that, as the applicant has failed to overturn all the aspects of the Tribunal decision, the respondent should be awarded costs. This is supported by reference to the fact that the claim on which the applicant succeeded (transport to the wharves)involved two categories of transportation whereas on the issue concerning transport to the feedlots, on which the respondent succeeded, three categories were involved.
5. It is also submitted for the respondent that I should take into account an alleged settlement offer made prior to the hearing in the Tribunal as well as further settlement proposals made after the commencement of the action. In Canatan Holdings Pty Limited v Audori Pty Limited (Einfeld J, 20 August 1993, unreported)it was said that in enacting s43 of the Federal Court of Australia Act 1976 Parliament should be taken as intending that in future the ordinary rule as to costs following the event should be replaced by a broad consideration of all the circumstances including any imbalance between the parties and "the reasonableness of their pre-trial attitudes to settlement." The appropriateness of having regard to settlement negotiations as a factor in the exercise of the discretion concerning costs was not argued before me. In any event, I do not consider it is a legal issue which I need to further address because I do not consider the evidence relied upon in support of these contentions could result in any more favourable view being taken of the respondent's case in respect of costs than that to which I have come.
6. I accept that it is not appropriate to decide the matter by dissection and that what is required is a broad judgment as to what is reasonable in the circumstances. In my opinion those circumstances involve the fact that the resolution of the issue relating to feedlots occupied a much greater part of the argument and resolution of the appeal than the issue of transport to the wharves. That has the consequence that I consider the respondent has been the substantially successful party so that there should be an award of costs in its favour but that there should also be some apportionment to recognize the success of the applicant on the issue relating to wharves.
7. With these considerations and all the circumstances of the matter in mind I conclude that the applicant should pay 70% of the costs of the respondent on the appeal.