HCA: Practice and procedure – costs

Aktas v Westpac Banking Corporation Limited [2010] HCA 47 (15 December 2010)

I refer to my earlier posting.

The matter returned to the High Court in relation to costs. The judgment is short and swift as to why, despite a favourable offer which was not bettered, the court would not recall its order and consider costs. It’s a procedural and practice point of some importance.



On 9 September 2010, the respondent (Westpac) filed a summons seeking the variation of pars 2 and 3 of the orders made by this Court. An amended summons was filed on 16 September 2010 and a further amended summons on 24 September 2010. The effect of the variations sought by the amended summons would be to order that Westpac pay Mr Aktas some but not all of the costs of the action up to 4 June 2007, and that Mr Aktas pay Westpac’s costs of the action thereafter, including the costs of the appeal to the Court of Appeal and the appeal to this Court. The exception which Westpac said should be made to the order that it pay Mr Aktas the costs of the proceedings up to 4 June 2007 was described as being “in relation to his [Mr Aktas’s] special damages claim”. In that regard, Westpac sought an order that Mr Aktas pay Westpac’s costs “thrown away by the abandonment of his special damages claim on 20 April 2007”. In the alternative, Westpac sought an order remitting all questions of costs, other than the costs in this Court, to the Court of Appeal.


Westpac submitted Mr Aktas should have no order for costs after 4 June 2007 but should instead pay Westpac’s costs of the proceedings at trial, in the Court of Appeal and in this Court, because on that day it had offered to pay Mr Aktas and his then co-plaintiff (Homewise Realty Pty Ltd – “Homewise”), jointly, the sum of $620,000 plus costs on terms that, subject to the publication of an apology, the terms of the settlement would be confidential. That offer was not accepted. The total of the amounts ultimately recovered in the proceedings by Homewise and Mr Aktas is said to be less than the amount offered on 4 June 2007. Westpac further submitted that the costs of the abandoned claim for special damages should fall on Mr Aktas because the claim was abandoned just before trial of the action. The trial Judge (Fullerton J) reserved the costs of the interlocutory proceedings at which the abandonment of the claim was debated and what were described as the “consequential costs” of the application.


In his notice of appeal to this Court and again in his written submissions, Mr Aktas said that if the appeal were allowed he should have orders for the costs of the proceedings at trial, on appeal to the Court of Appeal and in this Court. Westpac made no submissions to the contrary in its written or oral submissions on the hearing of the appeal. Westpac neither made nor foreshadowed any application for any special costs orders until, by its summons of 9 September 2010, issued five weeks after judgment had been delivered, it sought the orders that have been described earlier.


This Court’s orders have not yet been authenticated. There is no doubt that the Court has power to recall the orders made on 4 August 2010. The question is whether it should.


As Mason CJ rightly said in Autodesk Inc v Dyason [No 2][1], the exercise of the jurisdiction to reopen a judgment and to grant a rehearing “is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant’s part, he or she has not been heard”. The jurisdiction is, however, to be exercised with great caution[2], having regard to the importance of the public interest in the finality of litigation. That Mason CJ dissented in the result in that case does not deny the accuracy of the propositions just made.


Westpac had ample opportunity to foreshadow that, if the appeal succeeded, it wished to be heard in support of an application for special costs orders of the kind it now seeks. Westpac had clear notice of the costs orders Mr Aktas sought if his appeal were allowed. If, in framing the orders pronounced on 4 August 2010, the Court proceeded on some misapprehension of the facts, the misapprehension is to be attributed solely to Westpac’s not having raised those facts earlier, or at least foreshadowed the need to consider further facts before costs orders were made. The orders pronounced on 4 August 2010 should not now be varied.


Westpac’s further amended summons of 24 September 2010 should be dismissed with costs.

Brisbane Barrister – David Cormack

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