Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196

Griffiths v Boral Resources (Qld) Pty Ltd (No 2) [2006] FCAFC 196

Given the merits of the proceedings below, the respondent should not bear the burden of the costs below, so there should be no order as to those costs. The respondent should pay the appellant's costs of and incidental to the successful appeal. The Court should not make a direction preventing set-off or requiring direct payment to the appellant's legal representatives, because the respondent's right to set off the costs order against the existing judgment debt was not displaced by O 80 r 9(2) or by the Court's costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth).

Jurisdiction
Australia
Judgment Date
22 December 2006
Procedural Posture
Costs Determination on Appeal From the Federal Magistrates Court of Australia / After Full Court Judgment on Appeal, Parties Heard on Costs
Outcome
Costs order varied: no order as to costs below; respondent to pay appellant's costs of and incidental to the appeal; no direction made preventing set-off or requiring direct payment to legal representatives.
Legal Topics
['costs of Appeal and Proceedings Below' 'set Off Against Judgment Debt' 'pro Bono Representation Under Federal Court Rules O 80' 'federal Court Costs Discretion']
['costs' 'civil Procedure' 'bankruptcy'] ['costs of Appeal and Proceedings Below' 'set Off Against Judgment Debt' 'pro Bono Representation Under Federal Court Rules O 80' 'federal Court Costs Discretion']

Case Brief

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Procedural Posture

Costs Determination on Appeal From the Federal Magistrates Court of Australia / After Full Court Judgment on Appeal, Parties Heard on Costs

Legal Issues

  1. 1 ['Whether the costs order proposed in Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149 should be made or varied.' 'Whether any costs awarded against the respondent should be set off against the judgment debt owed by the appellant to the respondent.' "Whether the respondent should be ordered to pay appeal costs directly to the appellant's legal representatives where counsel acted pro bono."]

Ratio Decidendi

Given the merits of the proceedings below, the respondent should not bear the burden of the costs below, so there should be no order as to those costs. The respondent should pay the appellant's costs of and incidental to the successful appeal. The Court should not make a direction preventing set-off or requiring direct payment to the appellant's legal representatives, because the respondent's right to set off the costs order against the existing judgment debt was not displaced by O 80 r 9(2) or by the Court's costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth).

Court Disposition

Costs order varied: no order as to costs below; respondent to pay appellant's costs of and incidental to the appeal; no direction made preventing set-off or requiring direct payment to legal representatives.

Orders

  • ['There be no order as to costs in the proceeding below.' "The respondent pay the appellant's costs of and incidental to the appeal."]