Lowe v Mack Trucks Australia Pty Limited (No 2) [2008] FCA 711

Lowe v Mack Trucks Australia Pty Limited (No 2) [2008] FCA 711

The abandonment at trial of two lengthy and defective expert reports, and the failure to make timely discovery of critical evidence, justified the imposition of indemnity costs for those aspects given the unnecessary expense and hearing time lost. Otherwise, costs follow the event on a party and party basis.

Parties
First Applicant: Graham Lowe; Second Applicant: Erica Lowe; Respondent: Mack Trucks Australia Pty Limited
Jurisdiction
Australia
Judgment Date
21 May 2008
Procedural Posture
Costs Application After Trial Judgment / Post Trial; Costs Determination
Outcome
Costs orders granted as per respondent's application: indemnity costs for specified matters, otherwise party and party costs; return of confidential documents ordered.
Legal Topics
Costs, Indemnity Costs, Party and Party Costs, Discovery, Expert Evidence
Civil Procedure Costs Indemnity Costs Party and Party Costs Discovery Expert Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Graham Lowe

First Applicant

Erica Lowe

Second Applicant

Mack Trucks Australia Pty Limited

Respondent

Procedural Posture

Costs Application After Trial Judgment / Post Trial; Costs Determination

Legal Issues

  1. 1 Whether the Court should order costs on an indemnity basis for the abandonment of expert reports and late discovery of critical evidence
  2. 2 Principles relevant to the award and classification of costs

Ratio Decidendi

The abandonment at trial of two lengthy and defective expert reports, and the failure to make timely discovery of critical evidence, justified the imposition of indemnity costs for those aspects given the unnecessary expense and hearing time lost. Otherwise, costs follow the event on a party and party basis.

Court Disposition

Costs orders granted as per respondent's application: indemnity costs for specified matters, otherwise party and party costs; return of confidential documents ordered.

Orders

  • Applicants to pay respondent's costs of and incidental to the proceeding, including reserved costs, on a party and party basis save for (a) costs thrown away by reason of abandonment of two expert witness reports, and (b) costs incurred by reason of late discovery of FORS raw data, which are on an indemnity basis,...
  • Applicants to pay respondent's costs as fall within categories (a) and (b) on an indemnity basis.