ACCC v Daniels Corporation Pty Ltd

FEDERAL COURT OF AUSTRALIA

ACCC v Daniels Corporation Pty Ltd  [2001] FCA 936

Federal Court of Australia Act 1976 ss 20(1A), 43.

Preston Erection Pty Limited v Speedy Gantry Hire Pty Limited [1999] FCA 122 applied

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DANIELS CORPORATION INTERNATIONAL PTY LIMITED

N 992 OF 2000

WILCOX, MOORE and LINDGREN JJ
28 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 992 of 2000

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	DANIELS CORPORATION INTERNATIONAL PTY LIMITED RESPONDENT
JUDGE:	WILCOX, MOORE and LINDGREN JJ
DATE OF ORDER:	28 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application by Daniels Corporation International Pty Limited to vary the costs order made on 16 March 2001 be refused.

2.The costs of this application be part of the costs payable to Australian Competition and Consumer Commission pursuant to that order.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 992 of 2000

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	DANIELS CORPORATION INTERNATIONAL PTY LIMITED RESPONDENT

JUDGE:	WILCOX, MOORE and LINDGREN JJ
DATE:	28 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. Before the Court is an application by Daniels Corporation International Pty Limited (“Daniels Corporation”) to vary the orders made by the Court on 16 March 2001. On that occasion the Court dealt with a preliminary question which had been referred to a Full Court by the Chief Justice pursuant to s 20(1A) of the Federal Court of Australia Act 1976. The Court made an order that Daniels Corporation pay the costs incurred by the applicant, Australian Competition and Consumer Commission, in relation to determination of the referred point.

2. Daniels Corporation subsequently applied for the Court to vary its order by setting aside the costs order. Written submissions were supplied and we have heard oral argument in favour of that course being taken. In the written submissions of Daniels Corporation, questions were raised as to the jurisdiction of a Full Court to make costs orders in relation to a referred question, but it was eventually conceded by Mr Brabazon, counsel for Daniels Corporation, that a Full Court had jurisdiction to deal with such costs. This seems clearly correct, having regard to the terms of s 43 of the Federal Court of Australia Act.

3. However, Mr Brabazon maintained the Court had no power to exercise that jurisdiction unless the matter of costs had been specifically raised before the Full Court by counsel as, for example, by way of a specific application for costs or, alternatively, the matter of costs had been raised by a member of the Bench. When asked what authority there was for that view, Mr Brabazon referred to s 43 of the Federal Court of Australia Act and the rules of natural justice. 

4. As to s 43, it seems to me that section does not assist…