McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 (26 November 1999)

Last Updated: 30 November 1999

FEDERAL COURT OF AUSTRALIA

McKellar v Container Terminal Management Services Ltd

[1999] FCA 1639

COSTS - application by respondents for costs of interlocutory applications to be made payable forthwith - Federal Court Rules O 62 r 3 - applicants filed and served defective statement of claim - some causes of action untenable - subsequent abandonment of other causes of action - lengthy delay in final determination of proceeding - costs thrown away - appropriate that costs be payable forthwith.

Federal Court Rules O 62 r 3

McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 referred to

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 referred to

Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd (unreported, 22 May 1998, Federal Court of Australia, Branson J) applied

Harris v Cigna Insurance Australia Ltd (1995) ATPR ¶41-445 referred to

Mitanis v Pioneer Concrete (Vic) Pty Ltd & Ors (1998) ATPR ¶41,623 applied

Vasyli v AOL International Pty Ltd & Anor (unreported, 2 September 1996, Federal Court of Australia, Lehane J) referred to

Batten v CTMS Ltd [1999] FCA 1576 applied

Marshall v Sheahan [1999] FCA 1249 referred to

Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 referred to

Nelmac Pty Ltd v Construction, Forestry, Mining & Energy Union [1999] FCA 929 referred to

ANDREW McKELLAR and ANOR v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED and ORS

VG 555 of 1998

WEINBERG J

26 NOVEMBER 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 555 OF 1998

BETWEEN:	ANDREW McKELLAR First Applicant CHRISTOPHER MURRAY Second Applicant
AND:	CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED First Respondent FYNWEST PTY LTD (ACN 080 502 343) Second Respondent MICHAEL WELLS Third Respondent PETER KILFOYLE Fourth Respondent ALAN WILSON Fifth Respondent PCS TRAINING SERVICES PTY LTD (ACN 081 231 021) Sixth Respondent PATRICK STEVEDORES HOLDINGS PTY LTD Seventh Respondent LANG CORPORATION LIMITED Eighth Respondent CHRISTOPHER CORRIGAN Ninth Respondent THE COMMONWEALTH OF AUSTRALIA Tenth Respondent THE HONOURABLE PETER KEASTON REITH MP, MINISTER FOR INDUSTRIAL RELATIONS Eleventh Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	26 NOVEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. To the extent that the applicants may have required leave to file their further amended application dated 8 November 1999 such leave be granted nunc pro tunc.

2. The time within which the applicants were required to file and serve a further statement of claim be extended to 9 November 1999.

3. The costs of the motions dated 22 February 1999 and 8 November 1999 brought by the fifth, sixth and twenty-eighth to thirty-third respondents, as named in the amended statement of claim dated 24 December 1998, be taxed and paid forthwith.

4. The costs of the motions dated 22 February 1999 and 5 November 1999 brought by the seventh to ninth and twelfth to twenty-seventh respondents, as named in the amended statement of claim dated 24 December 1998, be taxed and paid forthwith.

5. The costs of the motions dated 22 February 1999 and 5 November 1999 brought by the tenth and eleventh respondents be taxed and paid forthwith.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 555 OF 1998

BETWEEN:

ANDREW McKELLAR First Applicant CHRISTOPHER MURRAY Second Applicant

AND:

CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED First Respondent FYNWEST PTY LTD (ACN 080 502 343) Second Respondent MICHAEL WELLS Third Respondent PETER KILFOYLE Fourth Respondent ALAN WILSON Fifth Respondent PCS TRAINING SERVICES PTY LTD (ACN 081 231 021) Sixth Respondent PCS RESOURCES PTY LTD (ACN 081 231 021) Seventh Respondent LANG CORPORATION LIMITED Eighth Respondent CHRISTOPHER CORRIGAN Ninth Respondent THE COMMONWEALTH OF AUSTRALIA Tenth Respondent THE HONOURABLE PETER KEASTON REITH MP, MINISTER FOR INDUSTRIAL RELATIONS Eleventh Respondent

JUDGE:	WEINBERG J
DATE:	26 NOVEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 On 13 August 1999 I delivered judgment in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409. I ordered that the applicants' amended statement of claim filed on 24 December 1998 be struck out, but that they be given leave to file and serve a further statement of claim on or before 29 October 1999. I also ordered that the applicants pay the respondents' costs of and incidental to the various motions which had been filed by the respondents. Notwithstanding what I described in my judgment as "the forceful submissions" made on behalf of the respondents, I refused an application that such costs be awarded on an indemnity or solicitor/client basis. However, I expressly gave liberty to the respondents to apply by motion for an order pursuant to O 62 r 3 of the Federal Court Rules ("the Rules") that the respondents' costs be taxed and paid forthwith, rather than, as would be the normal practice, after the principal proceedings are finally determined.

2 The applicants did, indeed, file what they describe as a further amended application and a further amended statement of claim, though not until 9 November 1999. No satisfactory explanation was provided to the Court for the failure to comply with the orders previously made on 13 August 1999.

3 The respondents have filed notices of motion seeking to have the applicants pay the costs previously awarded against them forthwith, rather than at the conclusion of the proceedings. It is convenient to refer to the various groups of respondents as they were referred to in the primary judgment. The "Lang respondents" (the seventh to ninth and twelfth to twenty-seventh respondents) and the Commonwealth of Australia and the Minister for Industrial Relations (the tenth and eleventh respondents) filed their notices of motion on 5 November 1999. The "NFF respondents" (the fifth, sixth and twenty-eighth to thirty-third respondents) filed their notice of motion on 8 November 1999.

4 Originally all respondents sought dismissal of the entire proceeding pursuant to O 10 r 7 of the Rules. This was on the basis that the applicants had failed to comply with my order that they file any amended statement of claim on or before 29 October 1999. That relief is now no longer sought.

The amended statement of claim of 24 December 1998

5 The statement of claim which accompanied the original application filed on 13 October 1998 pleaded against the eleven respondents who were named in the application causes of action arising out of breaches of the Trade Practices Act 1974 (Cth), and the torts of conspiracy, deceit and negligence. It was twenty pages in length.

6 The respondents foreshadowed at an early stage that they would seek to have the original statement of claim struck out. Rather than debate the matter, the applicants seem to have tacitly conceded that the pleading may be defective for they indicated at the outset that they would file an amended statement of claim. In those circumstances, it was plainly sensible to defer consideration of the respondents' contentions regarding the supposed deficiencies of the applicants' first pleading.

7 On 24 December 1998 the applicants filed the amended statement of claim which they had foreshadowed. It ran to ninety pages in length. For reasons which were never adequately explained, the number of respondents named in the pleading had increased from eleven to thirty-three, notwithstanding the fact that the original application was not itself amended to increase the number of respondents in the proceeding.

8 The respondents, having had the opportunity to consider the amended statement of claim, wrote to the solicitors for the applicants outlining in some detail their concerns regarding what was said to be a series of defects in that document. They indicated their intention to move to have the amended statement of claim struck out unless these defects were remedied. The applicants did not respond to the invitation to reconsider their pleading. On 22 February 1999, the Lang respondents, the Commonwealth and the Minister, and the NFF respondents filed motions in the Court seeking to have the proceedings against them summarily dismissed pursuant to O 20 r 1 of the Rules, or alternatively, to have the amended statement of claim struck out pursuant to O 11 r 16 of the Rules.

9 The motions came on for hearing before me on 4 and 5 March 1999. I reserved my judgment in the matter until 13 August 1999. I determined that the amended statement of claim was so plainly defective in both its style and manner of pleading, and so confusing and poorly drafted, that it should be struck out in its entirety. My judgment occupies fifty-eight pages of volume 165 of the Australian Law Reports.

10 Among the findings which I made, were:

* The parties named in the amended statement of claim did not at all times conform to the parties against whom allegations were made in the body of the pleading.

* The manner in which the pleading was numbered was all but incomprehensible.

* The claims brought pursuant to s 53B of the Trade Practices Act involved a fundamental misconception of the operation of that section.

* The claims brought against individual respondents under the Trade Practices Act were not pleaded as claims under s 75B of that Act.

* The claims brought against the Minister for Industrial Relations under the Trade Practices Act were incapable of grounding a cause of action against him.

* The claims brought in contract against the NFF respondents were pleaded incorrectly.

* The claims brought in conspiracy failed to identify the nature of the conspiracy alleged.

* The claims of common law conspiracy could not be pursued in the face of a statutory conspiracy pursuant to the Trade Practices Act being available.

* The claim of conspiracy against the Commonwealth was untenable.

* The claim brought for the tort of misfeasance in public office was pleaded incorrectly because it failed properly to identify the elements of that tort.

* The claims in negligence alleged in a conclusory way that various persons and entities owed duties of care to the applicants, but pleaded no material facts in support of the existence of any such duty.

11 In short, the statement of claim was struck out because it was almost entirely defective. The applicants were, however granted liberty to replead certain of their claims against the respondents, if they were minded to do so.

The further amended application and further amended statement of claim

12 In their further amended application filed on 9 November 1999 the applicants increased the number of respondents from the original eleven to thirty-four. In their further amended statement of claim filed on the same date they repleaded their claims under the Trade Practices Act, and in negligence. The applicants abandoned entirely their claims for the intentional torts of conspiracy and misfeasance in public office. They also abandoned their claim for breach of contract against the NFF respondents. The case which they now sought to plead in negligence differed significantly from that pleaded in the amended statement of claim which I had ordered be struck out.

The relevant principles which govern the making of orders that costs be paid forthwith

13 Order 62 r 3 of the Federal Court Rules provides:

"3. (1) The Court may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding.

(2) Where the Court makes an order in any proceeding for the payment of costs the Court may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded.

(3) An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order."

14 The principles which govern the exercise of the discretion under O 62 r 3 are identified in a helpful manner in a recent decision of Branson J in Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd (unreported, 22 May 1998).

15 Her Honour said:

"Order 62 rule 3 does not give any indication of the matters to which the Court is to have regard in determining whether to order that certain costs be paid forthwith notwithstanding that the proceeding is not concluded. Olney J in Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 expressed the view that -

"the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice envisaged by the rule, namely, that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded."

In Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 14) (Lindgren J, 18 August 1995, unreported) his Honour expressed the view that the provision of the Federal Court Rules allowing orders that costs be paid forthwith is "possibly under utilised". His Honour indicated that where the final determination of a proceeding was "far away", it might be appropriate for use to be made of O 62 r 3. In Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 13) (Full Federal Court, 17 August 1995, unreported) the Court, in considering the costs of an interlocutory appeal, said:

"The litigation is complex. It is unlikely that final judgment will be given until late 1996 or even later. The successful parties to the appeals before this Court will therefore, in the ordinary course of events, not recover their costs for a long time.

It would be wrong if the successful parties do not enjoy the fruits of their order for costs for such a long time. The parties entitled to the benefit of the order for costs which this Court has made in appeals from interlocutory orders should not be deprived of that benefit until the case has been finally disposed of."

The statement of claim in this matter suggests that the litigation will be complex. Certainly the matter to date has proceeded slowly. A hearing date can not realistically be expected for many months. I therefore take into account in the exercise of my discretion the fact that, unless an order is made pursuant to O 62 r 3, the respondents will not receive the benefit of the orders for costs made in their favour for a considerable time."

16 In Harris v Cigna Insurance Australia Ltd (1995) ATPR ¶41-445 Kiefel J accepted that an order that certain costs be taxed and paid forthwith was justified in circumstances where there had been "long delay in close of pleadings by the pursuit of an ill-considered and perhaps unnecessary claim" (see 41,011).

17 Branson J in Life Airbag referred specifically to the judgment of Kiefel J in Harris v Cigna Insurance Australia Ltd, and continued:

"Her Honour's approach appears to reflect a view, with which I am in agreement, that the demands of justice may well require a departure from the ordinary rule that costs are to be paid after the completion of proceedings, where a party has been required to incur significant costs over and above those which it would have incurred had the opposing party acted in the handling of the proceeding with competence and diligence. In this case the applicants filed and served five different versions of a statement of claim over a period of nine months. The applicants' own counsel ultimately conceded that the first four versions were unsatisfactory and required to be redrawn, but not before the respondents incurred the costs of instructing counsel to attend at Court on strike out applications. Costs incurred in such circumstances are not costs which, in the ordinary course, a party should be expected to bear until a proceeding is concluded. They are costs in reality thrown away and in respect of which, in my view, the demands of justice may require a departure from the general practice envisaged by O 62 r 3."

18 Mitanis v Pioneer Concrete (Vic) Pty Ltd & Ors (1998) ATPR ¶41,623 is a decision of this Court, also referred to by Branson J in Life Airbag, in which Goldberg J ordered costs to be taxed and paid forthwith where the effect of the interlocutory application before his Honour had been to remove "both factually and legally, one of the three causes of action ... from the area of dispute between the parties".

19 Branson J also referred to the decision of Lehane J in Vasyli v AOL International Pty Ltd & Anor (unreported, 2 September 1996) in which his Honour ordered that the respondents' costs of a successful strike out motion against the applicant's statement of claim be taxed and paid forthwith. In Vasyli, the applicant failed to amend his statement of claim despite clear warnings having been given by the respondents as to its deficiencies. His Honour found that upon the filing of an amended statement of claim following the strike out, the matter before the court would be, to a large extent, a new proceeding. Lehane J noted the justification for the general rule, and the inconvenience and oppression that could result from a series of taxations of costs of a series of interlocutory applications. However, he decided that the case before him was "one of those rare cases where it is appropriate to make an order for taxation and payment forthwith."

20 On 12 November 1999, Kiefel J handed down an interlocutory judgment in Batten v CTMS Ltd [1999] FCA 1576. The proceedings in that case, like the case before me, arose out of the recruitment and training of a non union workforce by and on behalf of the "Patrick companies" and others. Kiefel J ordered that certain costs of the respondents' successful strike out application be taxed and paid forthwith. Her Honour made that order on grounds "principally connected with the omission of ... pleas of loss and damage", and stated: "[t]he matter cannot proceed until these facts are pleaded". Her Honour (at par 63) compared the case before her to Life Airbag and to Vasyli:

"Lehane J made such an order where an unsatisfactory statement of claim required substantial amendment such that the proceedings could be viewed as having been commenced afresh. In this case, whilst the statement of claim was not wholly deficient, it has taken almost a year and three attempts to constitute the action, and when loss and damage are pleaded that will be the first time when the pleading could be regarded as complete. I will make the orders requiring payment of costs following taxation."

The respondents' contentions in support of an order that their costs be taxed and paid forthwith

21 The respondents contended that there should be a departure from the general practice in relation to costs for the following reasons:

* The amended statement of claim which I ordered to be struck out was drawn in an entirely unsatisfactory manner. Nearly a year has gone by since it was filed. That year has been virtually wasted, almost entirely because the applicants' pleading had been so fundamentally flawed.

* The defects in the amended statement of claim were drawn to the attention of the applicants by the respondents before they filed their motions to have that pleading struck out. The applicants chose to ignore the respondents' warnings. They sought, instead, to justify the amended statement of claim. They failed comprehensively in their attempt to do so.

* Several of the causes of action pleaded by the applicants in their amended statement of claim were found by me to be wholly untenable. Others have been abandoned in the further amended statement of claim filed on 9 November 1999. The case which the applicants now seek to pursue has been severely truncated, and is significantly different, from the case which was originally pleaded.

* The claims brought by the applicants involve complex questions of law and fact. The respondents have foreshadowed that there will be motions brought seeking to have the further amended statement of claim struck out. Whether or not any such motions are brought, these proceedings will not be ready for trial until, at the earliest, some time in 2001, more than a year from now. The respondents should not be required to wait until the final determination of these proceedings before they can recover the costs which were awarded in their favour in August of this year.

The applicants' original contentions in support of the adoption of the general practice

22 The applicants contended that there should be no departure from the general practice that costs awarded in relation to interlocutory matters are not recovered until the proceedings are finally determined for the following reasons:

* Their amended statement of claim of 24 December 1998 involved a number of difficult issues, and complex pleadings. It was not unreasonable for them to have pleaded their case against the respondents in the way in which they did. Such defects as were found by me to have existed in their pleading were properly and adequately dealt with by the orders which I made on 13 August 1999 requiring them to pay the respondents' costs. The applicants should not, in addition, be required to pay those costs forthwith.

* The final hearing of this application should not require the protracted and expensive preparation foreshadowed by the respondents. Much of that preparation has already been undertaken in the proceedings which culminated in the decision of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1. The present case could, in all likelihood, be ready for trial sooner than 2001.

* To order that the applicants pay the respondents' costs forthwith would have the effect of stymieing the applicants' entire proceeding. The costs, as taxed, are likely to be substantial. The applicants would not be in any position to pay those costs immediately.

It should be noted, however, that no evidence of any kind was placed before me to support the contention that the applicants are impecunious, or that an order that they pay the respondents' costs forthwith would stymie the entire proceedings. In the absence of any such evidence, I am unable to conclude that my making such an order would mean that these proceedings would be at an end. It is unnecessary for me therefore to determine whether, if that were the case, that would be relevant to the issue whether there should be a departure from the general rule.

* The present case differs in several important respects from Life Airbag. Whereas in that case there were five different versions of a statement of claim filed and served over a period of nine months, all of which were struck out, in the present case there had only ever been two statements of claim filed when I ordered that the amended statement of claim be struck out. Moreover, the defects which I had identified in the amended statement of claim were arguably not as significant as those found by Branson J to have existed in Life Airbag.

The applicants' supplementary contentions

23 When these motions were heard on 15 November, the applicants referred to three cases upon which they had not previously sought to rely. I invited the applicants and the respondents to forward written submissions concerning those three cases, which they did. The respondents dealt with the cases in a general way. The NFF respondents submitted that the cases identified no new principles which would detract from or fall outside the principles identified by the respondents in their earlier submissions. The Lang respondents submitted that the new authorities did not add anything to the principles set out in Life Airbag. The Commonwealth and the Minister adopted the submission of the NFF respondents. The applicants, however, made detailed submissions in respect of each case.

24 Marshall v Sheahan [1999] FCA 1249 is a decision of Mansfield J. His Honour in that case declined to order a departure from the general rule where such an order would have required the respondents' costs of an application brought by the applicants and certain non-parties to be taxed forthwith to the extent that the costs were payable by non-parties, while the costs payable by the applicants (against whom no order for immediate taxation and payment was sought) would not be taxed until after the conclusion of proceedings. In declining to depart from the general rule, Mansfield J noted the inconvenience that would be caused if essentially the same costs were to be taxed on two separate occasions, and the fact that there was nothing to indicate that injustice or disadvantage would be caused to the respondents if they were to wait until the conclusion of proceedings for their costs to be paid. No significant delay was expected.

25 The applicants drew attention to the fact that Mansfield Jhad quoted from Lehane J's decision in Vasyli (supra) in which his Honour noted the inconvenience a series of taxations of costs during the currency of a matter. The applicants also submitted that the respondents had not placed before the Court any evidence that they would suffer material disadvantage by reason of their waiting for taxation, and that that was a relevant factor in the case before me. There is not before the Court any evidence as to the amount of costs that have been spent, "the likely amount of party and party or solicitor/client costs", whether all respondents are paying costs or whether some or all of them are being financed by third parties.

26 The applicants noted that Mansfield J in Marshall identified delay as a relevant consideration when deciding whether to depart from the general rule as to costs. The applicants submitted, however, that:

"mere delay of itself would not be an adequate ground upon which to depart from the general rule. Rather, it is the significance of the cause of the delay. The delay in the case currently before the court will be extensive irrespective of the causes of action pleaded against the various respondents."

27 The applicants submitted that the very nature of this case, being a trade practices and tort case against a large number of respondents, including the Commonwealth and a Minister, is such that the litigation process will be lengthy and complex with numerous interlocutory applications likely. In addition they submitted that there was a likelihood of further amendment to pleadings after discovery. It would be unreasonable, they said, if there were to be a departure from the general rule where delay is an inevitable feature of this type of litigation. The applicants drew a distinction between this case and Mitanis (supra) in which Goldberg J found that an amended statement of claim was "in large measure a new proceeding". They contended that the further amended statement of claim filed on 9 November 1999 is "similar in terms to the previous proceeding save and except for the omission of a number of intentional tortious claims such as conspiracy, misfeasance in public office and a contract claim". The case is still essentially a trade practices case and the pleading is still extensive, being over sixty pages in length.

28 In addressing the decision in Vasyli (supra) (which was cited by Mansfield J in Marshall) the applicants stated that "a significant feature of that case was that the respondents were resident outside the jurisdiction and had been brought before the court to deal with a seriously defective Statement of Claim".

29 In paragraphs 13 and 14 of their submissions, the applicants sought to draw a distinction between this case and Life Airbag (supra) to which Mansfield J referred in Marshall. As previously stated, in Life Airbag there were five attempts made at a statement of claim and several court appearances dealing with strike out applications and applications for leave to amend. The applicants submitted that in the case before me there has been only one court appearance where a strike out was argued, while the other court appearances were in the nature of directions hearings which would have taken place in any event as part of ongoing case management.

30 In addition, the appellants submitted that many of the issues determined on the strike out were matters that had not been decided by an Australian court (s 75B allegation against the Minister for Industrial Relations) or were matters that needed to be revisited in the light of High Court authority - such as the claims of conspiracy, and claims in tort and contract, against the Commonwealth.

31 The Lang respondents disputed paragraph 14 of the applicants' submission:

* At the first directions hearing on 27 November 1998 the applicants abandoned their statement of claim and elected to file and serve an amended statement of claim. The first directions hearing was thus wasted.

* After warnings about the inadequacies in the amended statement of claim, the second directions hearing on 5 February 1999 resulted in a timetable for challenges to be made to the amended statement of claim. The second directions hearing was thus wasted.

* The hearing on 4 and 5 March 1999 followed delivery of extensive written submissions. The applicants could have, but did not, abandon their amended statement of claim. The two days of hearing were thus wasted.

32 The applicants referred to Batten (supra) as being a case which was comparable to the present case, but drew a distinction on the basis that the applicants in Batten had continued with a trade practices claim against the Commonwealth where that claim was not truly arguable. The applicants in this case did not make the same kind of trade practices claim against the Commonwealth, only a s 75B claim, which, the applicants submitted, "remained largely and specifically untested save and except for obiter dicta in Kerin's case".

33 In Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150, a decision of Lehane J, the applicant sought immediate taxation of costs occasioned by its successful contempt proceeding against the respondent. The respondent objected on the grounds that the contempt proceeding was interlocutory and an O 62 r 3 order was required. Lehane J found that a contempt proceeding, though commenced by motion in an existing proceeding, is not interlocutory in nature, but separate and distinct from the existing proceeding. Therefore, the principles associated with O 62 r 3 were not applicable and costs could be taxed forthwith.

34 In Nelmac Pty Ltd v Construction, Forestry, Mining & Energy Union [1999] FCA 929, a decision of Madgwick J concerning an application for costs of a failed contempt proceeding to be taxed and paid forthwith, Madgwick J followed the decision of Lehane J in Real Tech, and ordered immediate taxation. The applicants sought to distinguish the present case from Real Tech and Nelmac on the ground that the interlocutory matters in this case, the strike out motions, were not of the same final nature as the contempt proceedings dealt with in those cases.

35 I do not view the decisions in Real Tech and Nelmac as relevant to the case before me.

36 In paragraph 20 of their submissions the applicants set out in summary form the distinctions they saw between the case before me and those cases in which costs were ordered to be taxed and paid forthwith:

"In this case the applicants have not failed to answer particulars or exposed respondents from another jurisdiction to unnecessary costs (Vasyli), submitted unacceptable amounts of amended pleadings and withdrawn same exposing the respondents to unnecessary court appearances and the instructing of counsel (Life Airbag), discontinued proceedings which were in effect in the nature of principal relief (Nelmac) or instigated unnecessary interlocutory proceedings (Marshall)."

37 The Lang respondents took issue with paragraph 20 of the applicants' submissions, claiming that it was inaccurate in the following ways:

* That the applicants have not failed to answer particulars is true, but only because the proceeding has not advanced to a position where a statement of claim has survived a strike out motion.

* The wasted directions hearings and the hearings in March 1999 have exposed the Lang respondents to unnecessary costs.

* The intentional tort claims, which occupied the larger part of the hearings in March 1999, have now been withdrawn.

* New parties have been named in the further amended statement of claim but have not been served (e.g. the 34^th respondent).

* Whilst claims in negligence and under the Trade Practices Act remain, a comparison of the amended statement of claim with the further amended statement of claim shows that the factual basis for such claims is materially different.

Conclusion

38 The discretion which is vested in the Court to order that a party's costs be taxed and paid forthwith should be exercised only where the interests of justice in the particular case require that there be a departure from the general practice. It may be, as Lehane J observed in Vasyli, that such orders will only rarely be made. Each case must, however, be considered on its own facts.

39 In my view, the decision of Kiefel J in Batten and the decision of Branson J in Life Airbag arose out of situations which are, in certain respects analogous to the case before me. Significant costs have been incurred in this litigation. Almost a year has been wasted principally because the applicants' amended statement of claim was so seriously defective.

40 I have come to the conclusion that the circumstances in the present case warrant a departure from the general practice envisaged by O 62 r 3 of the Rules. Almost a year after the amended statement of claim was filed, a significant part of the case has been removed, both factually and legally, from the area of dispute between the parties - Mitanis (supra). I can see no reason why the respondents should be required to wait for a period of up to two years before they are able to recover the fruits of the orders for costs which I made in August of this year. Those orders were designed to compensate the respondents, at least partially, by way of party and party costs, for having been unnecessarily burdened with having to take the costly and time consuming steps needed to ensure that a pleading which ought never to have been filed was struck out, as it ultimately was. The costs incurred by the respondents were, in truth, thrown away.

41 I should say that I agree entirely with the observation of Lindgren J in Allstate (to which reference was made by Branson J in Life Airbag) that the power to order that costs be paid forthwith should perhaps be used less sparingly than it has been in the past. That is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur.

42 I note that before me, and in their submissions, the applicants suggested that in the event that I decided that a departure from the general rule was justified, I should order the parties to attempt mediation straight away, notwithstanding that the pleadings have not closed. The applicants in their written submissions contended that a mediation would be the "most productive way in which the length of time to tax or pay the costs as sought by the respondents could be reduced". They proposed an order that the respondents' costs then be taxable forthwith only if the mediation were unsuccessful. For their part, the Lang respondents and the NFF respondents (whose submissions the Commonwealth and the Minister adopted) objected to the applicants including in their written submission matters extraneous to the cases of Marshall, Nelmac and Real Tech. Before me, the respondents submitted that mediation would not be worthwhile until the pleadings had closed and discovery had been made.

43 I do not think it is appropriate at this stage to order that there be an early mediation. As presently advised, I do not consider that it would be likely to be productive given the early stage of the pleadings, and the nature of the dispute between the parties.

44 I propose to order that the costs which I awarded to the respondents on 13 August 1999 be taxed and paid forthwith. I propose also to order that the respondents' costs of and incidental to the motions presently before the Court be taxed and paid forthwith.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated: 26 November 1999

Counsel for the Applicants:	Mr D Baran
Solicitors for the Applicants:	Dorrough Smart
Counsel for the Seventh to Ninth Respondents, and Twelfth to Twenty-Seventh Respondents as named in the amended statement of claim of 24 December 1998:	Mr RM Peters
Solicitors for the Seventh to Ninth Respondents and Twelfth to Twenty-Seventh Respondents as named in the amended statement of claim of 24 December 1998:	Arnold Bloch Leibler
Counsel for the Fifth, Sixth and Twenty-Eighth to Thirty-Third Respondents as named in the amended statement of claim of 24 December 1998:	Mr PJ Jopling QC with Mr JL Bourke
Solicitors for the Fifth, Sixth and Twenty-Eighth to Thirty-Third Respondents as named in the amended statement of claim of 24 December 1998:	Minter Ellison
Counsel for the Tenth and Eleventh Respondents:	Mr N Lucarelli with Mr D Chan
Solicitor for the Tenth and Eleventh Respondents:	Australian Government Solicitor
Counsel for the First, Second, Third and Fourth Respondents:	No appearance
Solicitor for the First, Second, Third and Fourth Respondents:	No appearance
Date of Hearing:	15 November 1999
Date of Judgment:	26 November 1999