Brookfield v Yevad Products Pty Ltd [2004] FCA 1717

Brookfield v Yevad Products Pty Ltd [2004] FCA 1717

Because there was only one order dismissing the applicants' claim, it was appropriate to set aside Branson J's dismissal order and related costs orders rather than limit relief to one cause of action. The applicants were entitled to costs thrown away by the respondent's failure to make proper and appropriate discovery, but a lump sum was not appropriate because the judge was not the trial judge and the costs thrown away could not yet be identified. Costs could not be used to punish the respondent or awarded as exemplary damages. No costs of the notice of motion were ordered because the applicants were largely unrepresented and the respondent's conduct had given them grounds to be...

Jurisdiction
Australia
Judgment Date
23 December 2004
Procedural Posture
Practice and Procedure; Costs Orders and Applications to Set Aside Orders and Join a Non Party / Reasons and Orders on Notices of Motion After Reasons Delivered on 9 September 2004 Concluding That Orders Made by Branson J Should Be Set Aside
Outcome
Orders of Branson J set aside in part; respondent ordered to pay applicants' costs thrown away by discovery default; no order for costs of the notice of motion; application to join McPherson's Limited dismissed; leave and time to appeal granted.
Legal Topics
['setting Aside Judgment and Costs Orders' 'costs Thrown Away' 'lump Sum Costs' 'costs of Unrepresented Litigants' 'discovery Default' 'joinder of Non Party for Costs']
['practice and Procedure' 'costs' 'discovery'] ['setting Aside Judgment and Costs Orders' 'costs Thrown Away' 'lump Sum Costs' 'costs of Unrepresented Litigants' 'discovery Default' 'joinder of Non Party for Costs']

Case Brief

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Procedural Posture

Practice and Procedure; Costs Orders and Applications to Set Aside Orders and Join a Non Party / Reasons and Orders on Notices of Motion After Reasons Delivered on 9 September 2004 Concluding That Orders Made by Branson J Should Be Set Aside

Legal Issues

  1. 1 ['Whether the orders made by Branson J on 8 February 1996 and 19 December 1997 should be set aside.' "Whether the applicants should recover costs thrown away by reason of the respondent's failure to make proper and appropriate discovery." 'Whether costs should be awarded as a lump sum or as exemplary damages.' 'Whether the applicants, while unrepresented, were entitled to costs of the notice of motion.' "Whether McPherson's Limited should be joined and made liable for costs."]

Ratio Decidendi

Because there was only one order dismissing the applicants' claim, it was appropriate to set aside Branson J's dismissal order and related costs orders rather than limit relief to one cause of action. The applicants were entitled to costs thrown away by the respondent's failure to make proper and appropriate discovery, but a lump sum was not appropriate because the judge was not the trial judge and the costs thrown away could not yet be identified. Costs could not be used to punish the respondent or awarded as exemplary damages. No costs of the notice of motion were ordered because the applicants were largely unrepresented and the respondent's conduct had given them grounds to be...

Court Disposition

Orders of Branson J set aside in part; respondent ordered to pay applicants' costs thrown away by discovery default; no order for costs of the notice of motion; application to join McPherson's Limited dismissed; leave and time to appeal granted.

Orders

  • ['Paragraph 1 of the orders made by Branson J in the within action on 8 February 1996 be set aside.' 'Paragraph 2 of the orders made by Branson J in the within action on 8 February 1996 be set aside.' 'The order made by Branson J on 19 December 1997 be set aside.' "The respondent pay the applicants' costs thrown...