Aircent Pty Ltd v Apple Computer Australia Pty Ltd

FEDERAL COURT OF AUSTRALIA

Aircent Pty Ltd v Apple Computer Australia Pty Ltd [2002] FCA 1270

PRACTICE & PROCEDURE – initiation of Federal Court proceeding while proceeding under way in Supreme Court of New South Wales – whether initiation of Federal Court proceeding constitutes an abuse of process – whether proceeding should be stayed or dismissed.

COSTS – whether appropriate to order costs against solicitor on an indemnity basis.

Trade Practices Act 1974 (Cth) s 52

Federal Court of Australia Act 1976 (Cth) s 43(2)

Fair Trading Act 1987 (NSW)

Federal Court Rules O20 r 2, O 45 r 7

Walton v Gardiner (1993) 177 CLR 378, applied

Software Engineers Australia (NSW) Ltd v Bonket Pty Ltd [2002] FCA 1168, referred to

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, referred to

AIRCENT PTY LTD v APPLE COMPUTER AUSTRALIA PTY LTD and MR JIM LIKIDIS

V 172 OF 2002

MARSHALL J
MELBOURNE
15 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 172 OF 2002

BETWEEN:

AIRCENT PTY LTD
(ACN 064 205 858)
APPLICANT

AND:

APPLE COMPUTER AUSTRALIA PTY LTD
(ACN 002 510 054)
FIRST RESPONDENT

MR JIM LIKIDIS
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

15 OCTOBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The substantive proceeding be dismissed.

2.Issac Brott & Co. pay the respondents’ costs of the proceeding on and from 10 April 2002 until 1 October 2002.

3.Such costs referred to in order 2 be paid on an indemnity basis.

4.The applicant pay the respondents’ costs of the application otherwise and the costs of the motion.

5.The motion otherwise be dismissed.

In respect of Mr Brott’s motion, it is ordered that:

1.           The motion be dismissed.

2.           Issac Brott pay the respondents’ costs of the motion.

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	V 172 OF 2002

BETWEEN:

AIRCENT PTY LTD
(ACN 064 205 858)
APPLICANT

AND:

APPLE COMPUTER AUSTRALIA PTY LTD
(ACN 002 510 054)
FIRST RESPONDENT

MR JIM LIKIDIS
SECOND RESPONDENT

JUDGE:	MARSHALL J
DATE:	15 OCTOBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 21 March 2002, the applicant, Aircent Pty Ltd (“Aircent”), commenced a proceeding under the Trade Practices Act 1974 (Cth) (“the TPA”). Aircent sought, inter alia, a declaration that the respondents, Apple Computer Australia (“Apple”), and Mr Likidis, had contravened s 52 of the TPA.

2. On 1 May 2002, Aircent filed an amended statement of claim pursuant to an order of the Court made on 15 April 2002.  By motion dated 27 August 2002, the respondents, inter alia, sought the following relief:

   ·    pursuant to order 20 rule 2 of the Rules of Court, the amended statement of claim be struck out;

   · pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth), the costs of the proceeding, including the motion,…