Microsoft Corp & Anor v Marks, Rodney David [1996] FCA 767

Microsoft Corp & Anor v Marks, Rodney David [1996] FCA 767

The order that there be no order as to the costs of the appeal should stand because the pro bono contingency arrangement was not a proper basis for making a special costs order against Microsoft, and because Mr Marks' failed competency objection was a discrete issue which, if raised by motion under O 52 r 18, would have resulted in him paying Microsoft's costs of that motion while receiving costs only on the substantive appeal.

Jurisdiction
Australia
Judgment Date
30 August 1996
Procedural Posture
Appeal / Reasons for Judgment on Costs Following Dismissal of Appeal and Application for Leave to Make Further Submissions on Costs
Outcome
Leave granted for further submissions on costs; no variation to the previous order that there be no order as to the costs of the appeal.
Legal Topics
['costs of Appeal' 'pro Bono Representation' 'contingency Fee Basis' 'competency of Appeal' 'objection to Competency' 'federal Court Rules O 52 R 18']
['practice and Procedure' 'costs'] ['costs of Appeal' 'pro Bono Representation' 'contingency Fee Basis' 'competency of Appeal' 'objection to Competency' 'federal Court Rules O 52 R 18']

Case Brief

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Procedural Posture

Appeal / Reasons for Judgment on Costs Following Dismissal of Appeal and Application for Leave to Make Further Submissions on Costs

Legal Issues

  1. 1 ['Whether legal practitioners appearing for the successful respondent pro bono on a contingency fee basis was a relevant consideration in making a costs order.' 'Whether costs should follow the event of dismissal of the appeal where the respondent failed on an objection to competency.' 'Whether the competency issue should be treated as discrete from the merits issues for costs purposes.' 'Whether the respondent should be placed in a more favourable costs position than if he had moved for dismissal of the appeal as incompetent before the hearing.']

Ratio Decidendi

The order that there be no order as to the costs of the appeal should stand because the pro bono contingency arrangement was not a proper basis for making a special costs order against Microsoft, and because Mr Marks' failed competency objection was a discrete issue which, if raised by motion under O 52 r 18, would have resulted in him paying Microsoft's costs of that motion while receiving costs only on the substantive appeal.

Court Disposition

Leave granted for further submissions on costs; no variation to the previous order that there be no order as to the costs of the appeal.

Orders

  • ["On the respondent's application, leave be granted for the making of further submissions in relation to the appropriate order for costs on the appeal." 'There be no variation in order number 3 made on 14 August 1996.']