Fernando v Commonwealth of Australia (No 2) [2015] FCAFC 49

Fernando v Commonwealth of Australia (No 2) [2015] FCAFC 49

A costs order should be made against Mr Fernando because he was unsuccessful on the appeal and the Commonwealth was successful on the cross-appeal. No costs order should be made against Mr Ley personally. Indemnity costs should not be awarded because the reasonableness of rejecting the offers was finely balanced, the nominal damages issue raised difficult and important points of principle with an element of public interest, and the timing and circumstances of the offers did not justify indemnity costs. Costs were therefore ordered on a party and party basis.

Jurisdiction
Australia
Judgment Date
02 April 2015
Procedural Posture
Costs on Appeal and Cross Appeal / Heard on the Papers After the Appeal Was Dismissed, the Application for Leave to Amend the Notice of Cross Appeal Was Refused, and the Cross Appeal Was Allowed
Outcome
The appellant and cross-respondent were ordered to pay costs on a party and party basis; indemnity costs were refused; the cross-appellant was ordered to pay the cross-respondent's costs of the application to amend the cross-appeal.
Legal Topics
['costs Against a Mentally Disabled Person Represented by a Tutor' 'personal Liability of a Tutor for Costs' 'indemnity Costs' 'offers of Compromise' 'party and Party Costs']
['costs' 'civil Procedure'] ['costs Against a Mentally Disabled Person Represented by a Tutor' 'personal Liability of a Tutor for Costs' 'indemnity Costs' 'offers of Compromise' 'party and Party Costs']

Case Brief

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Procedural Posture

Costs on Appeal and Cross Appeal / Heard on the Papers After the Appeal Was Dismissed, the Application for Leave to Amend the Notice of Cross Appeal Was Refused, and the Cross Appeal Was Allowed

Legal Issues

  1. 1 ['Whether an order for costs should be made against Mr Fernando in circumstances where he was represented by a tutor and the tutor was not personally liable for costs.' "Whether Mr Fernando should pay the respondents' and cross-appellant's costs on an indemnity basis because he rejected offers of compromise." 'Whether the timing and circumstances of the offers of compromise made it unreasonable for Mr Fernando to reject them.']

Ratio Decidendi

A costs order should be made against Mr Fernando because he was unsuccessful on the appeal and the Commonwealth was successful on the cross-appeal. No costs order should be made against Mr Ley personally. Indemnity costs should not be awarded because the reasonableness of rejecting the offers was finely balanced, the nominal damages issue raised difficult and important points of principle with an element of public interest, and the timing and circumstances of the offers did not justify indemnity costs. Costs were therefore ordered on a party and party basis.

Court Disposition

The appellant and cross-respondent were ordered to pay costs on a party and party basis; indemnity costs were refused; the cross-appellant was ordered to pay the cross-respondent's costs of the application to amend the cross-appeal.

Orders

  • ["The appellant pay the respondents' costs of the appeal." "The cross-respondent pay the cross-appellant's costs of the cross-appeal." "The cross-appellant pay the cross-respondent's costs of the application to amend the cross-appeal."]