Rosenboom & Ors v Qantas Airways Ltd & Ors

Sperling J : I refer to the order for costs which I made in the judgment given on 6 September 2001 with liberty to apply in that regard. In the event, I have been asked to give further consideration to the question of costs and I have heard argument.

Section 76 of the Supreme Court Act 1970 provides that, subject to the act and the rules, costs shall be in the discretion of the court.

Part 52A r11 provides, so far as is relevant, that, if the court makes any order as to costs, the court shall order that the costs follow the event, except where it appears to the court that some other order should be made as to the whole or any part of the costs. A successful party should not be deprived of costs unless there is material to justify a contrary order being made: Milne v Attorney General (Tasmania) (1956) 95 CLR 460, 477.

The plaintiffs say that there is insufficient reason to depart from the general rule that costs should follow the event.

In what follows I will use the initials adopted for various parties in my earlier judgment.

CASA submitted, in order of preference, that each party should pay its own costs of the motions; alternatively, that costs be costs in the cause; alternatively, that the plaintiffs’ costs be the plaintiffs’ costs in the cause. That approach was supported by GI and MA.

It was submitted on behalf of BA, who consented to the transfer application affecting them, that the plaintiff should also be ordered to pay the defendants’ costs thrown away as a result of the proceedings having been commenced in this state and then transferred to Victoria. CASA, GI and MA utilised that argument in support of their approach rather than arguing for a specific order in that regard.

Relevant considerations are as follows. First, costs should follow the event unless there are reasons to the contrary.

Secondly, I would proceed on the basis that, when proceedings are transferred to another state under the cross-vesting legislation, the court in the other state has power to make an order for costs in relation to the proceedings as a whole which would include costs incurred in the cause prior to the transfer. Some costs incurred by the defendants in the cause prior to the transfer may be thrown away as a result of the transfer because things done here might not have been required at all under Victorian procedures or because things done here might now have to be done again to comply with Victorian procedures. There may be other costs thrown away. That, however, is a matter to be taken into account as the Victorian court may be advised when making any order for costs concerning the proceedings as a whole.

So far as the costs of the transfer applications are concerned, the defendants have an argument that the plaintiffs should bear the reasonable costs incurred by the defendants in considering whether to oppose or consent to the applications. The argument proceeds on the basis that such costs were incurred as a result of the proceedings having been commenced in New South Wales and it having then become expedient for the proceedings to be transferred to Victoria.

Notwithstanding that it took some time for me to deal with the arguments advanced on the hearing of the applications, the legal and practical merits of the applications were overwhelmingly in favour of the plaintiffs. Very little consideration was reasonably required for the defendants to have come to the view that the only sensible course was for the proceedings to be transferred. I would, accordingly, regard the costs incurred by the defendants in considering whether to consent to the transfer orders as being de minimis.

It was common ground on the hearing of the argument as to costs that the court would not make a transfer order without being satisfied that it was appropriate to do so. It was then submitted on behalf of the defendants who opposed the applications that, in the event, the court had the benefit of a contradictor and that it would be inappropriate, on that account, to visit those defendants with an order for costs.

I do not agree with that approach. For the reasons mentioned in my previous judgment, it would have been in the interests of justice for the defendants to have consented to the applications - if not to have supported them - rather than put the plaintiffs and the court to the trouble of having to deal with the applications on a contested basis.

The plaintiffs should not, however, be entitled to recover the costs of instituting the applications. The need for that work should be seen as resulting from the proceedings having been instituted here in the first instance and it then becoming expedient for the proceedings to be transferred to Victoria. The defendants did not cause the plaintiffs to incur those costs.

The plaintiffs would also have incurred some costs in processing the applications to finality if all the defendants had consented to the transfer orders being made. There is an argument for reducing the plaintiffs’ entitlement to the costs of the contested applications on that account. However, such costs would have been de minimis relative to the costs of the contested applications.

For these reasons, I vary orders 2, 3 and 4 made on 6 September 2002 by adding to each such order the following words: “except the plaintiff’s costs of preparing, filing and serving the notice of motion and the evidence in support thereof”. -oOo-