Woodlands, B.M. & Anor v Permanent Trustee Company Ltd & Ors [1995] FCA 548

Woodlands, B.M. & Anor v Permanent Trustee Company Ltd & Ors [1995] FCA 548

It would be unjust to leave the respondents in a worse position by reason of applicants’ choice of federal forum, given State cost-capping would apply in a State court. The appropriate order is to limit recoverable costs to the same cap as would apply under s.47 of the Legal Aid Commission Act ($12,500 per respondent with separate interest), pending resolution of the statutory protection issue; in related cases, a nominal maximum ($10) is fixed, with liberty to apply if the main proceeding is discontinued.

Jurisdiction
Australia
Judgment Date
27 July 1995
Procedural Posture
Notice of Motion — Cost Capping in Representative and Individual Proceedings / Interlocutory—application for Specification of Maximum Recoverable Costs Prior to Determination of Preliminary Questions
Outcome
Conditional specification of maximum recoverable costs;
Legal Topics
['cost Capping' 'public Interest Litigation' 'legal Aid Commission Act S 47' 'federal Court Rules Order 62 A' 'trade Practices Act 1974' 'fair Trading Act 1987 (nsw)' 'contracts Review Act 1980 (nsw)' 'fiduciary Duty' 'conditional Costs Orders']
['civil Procedure' 'costs' 'representative Proceedings'] ['cost Capping' 'public Interest Litigation' 'legal Aid Commission Act S 47' 'federal Court Rules Order 62 A' 'trade Practices Act 1974' 'fair Trading Act 1987 (nsw)' 'contracts Review Act 1980 (nsw)' 'fiduciary Duty' 'conditional Costs Orders']

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Procedural Posture

Notice of Motion — Cost Capping in Representative and Individual Proceedings / Interlocutory—application for Specification of Maximum Recoverable Costs Prior to Determination of Preliminary Questions

Legal Issues

  1. 1 ['Whether the Court should specify a maximum amount for costs recoverable between parties under Order 62A of the Federal Court Rules in representative proceedings, particularly when public interest litigation is involved;' 'Relevance and potential applicability of s.47 of the Legal Aid Commission Act 1979 (NSW) to these Federal Court proceedings;' 'Effect of exposure to adverse costs orders on access to justice in representative and public interest matters;' 'Whether respondents should be disadvantaged by applicants’ choice of Federal over State jurisdiction, especially regarding cost protection imposed by state legislation.']

Ratio Decidendi

It would be unjust to leave the respondents in a worse position by reason of applicants’ choice of federal forum, given State cost-capping would apply in a State court. The appropriate order is to limit recoverable costs to the same cap as would apply under s.47 of the Legal Aid Commission Act ($12,500 per respondent with separate interest), pending resolution of the statutory protection issue; in related cases, a nominal maximum ($10) is fixed, with liberty to apply if the main proceeding is discontinued.

Court Disposition

Conditional specification of maximum recoverable costs;

Orders

  • ['In NG 660 of 1994: maximum costs recoverable as between the applicants and any one respondent with a separate interest fixed at $12,500, subject to variation after determination of preliminary issues or if s.47 of the Legal Aid Commission Act (NSW) is found to apply;' 'In NG 835 of 1994 and NG 928 of 1994: maximum...