Gaffney v RSM Bird Cameron Partners (a Firm) (No 2) [2013] FCA 945

Procedural Posture

Costs Application / Application by the Respondents for Indemnity Costs, Costs Payable Forthwith, and a Stay Following Partial Summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth)

Legal Issues

1. 1 ["Whether the respondents' costs of the dismissed causes of action, the summary judgment application, and the special costs application should be assessed on an indemnity basis." 'Whether those costs should be taxable and payable forthwith.' 'Whether the remaining cause of action should be stayed until the applicant paid the costs.']

Ratio Decidendi

The dismissed causes of action were hopeless and were commenced and continued in circumstances where the applicant, properly advised, should have known there was no chance of success. The applicant also prolonged the proceeding through repeated pleadings and discovery disputes, made serious groundless allegations against professional colleagues without proper particulars or supporting evidence, persisted despite the respondents' evidence and submissions demonstrating the futility of her case, and was found to have been less than forthright in some evidence. Those circumstances justified indemnity costs. The summary judgment application determined a discrete aspect of the proceeding, so...

Court Disposition

Respondents' application for indemnity costs and costs payable forthwith granted; application for a stay refused as premature.

Orders

• ["The applicant pay the respondents' costs on an indemnity basis, to be paid forthwith, of the costs of those parts of the proceedings dismissed, the application for summary judgment and the costs of this application for a special costs order."]