Australian Competition and Consumer Commission v Boral

[1999] FCA 663

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Boral
Ltd  [1999]  FCA 663

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION V BORAL LIMITED

VG 79 OF 1998

HEEREY J
21 MAY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 79 of 1998

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

BORAL LIMITED
(ACN 000 051 696)

and

BORAL BESSER MASONRY PTY LTD
(ACN 000 223 718)
Respondents

JUDGE:

HEEREY J

DATE:

21 MAY 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The respondents pay, on a solicitor and own client basis, the costs which Rocla Limited incurred in making non-party discovery in accordance with the orders of this Court dated 10 February 1999, including costs relating to preparation of submissions.

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 79 of 1998

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

BORAL LIMITED
(ACN 000 051 696)

and

BORAL BESSER MASONRY PTY LTD
(ACN 000 223 718)
Respondents

JUDGE:	HEEREY J
DATE:	21 MAY 1999
PLACE:	MELBOURNE

RULING

1. The respondents and Rocla Limited have filed written submissions dated 24 February 1999 and 4 March 1999 respectively.  I incorporate those submissions by reference.  I note that the respondents do not contend that there is no jurisdiction to order costs on a solicitor and own client basis, as sought by Rocla.  

2. It seems to me only basic fairness that a non-party, who has neither instigated litigation nor engaged in conduct which has provoked another to litigate, should not be out of pocket.  Put another way, it does not seem reasonable that a non-party should be effectively compelled by Court order to subsidise litigation in which it has no interest. 

3. I agree with Rocla’s submission that the public interest in encouraging non-parties to make as full and complete discovery as possible will be served if these parties are aware that their legal costs will be recoverable. 

4. I will order that the respondents pay, on a solicitor and own client basis, the costs of Rocla incurred in making non-party discovery, including costs relating to preparing its submissions.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             

Counsel for Rocla Limited :	Mr D Trindade
Solicitor for Rocla Limited :	Clayton Utz
Counsel for the Respondent:	C. M. Maxwell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 February 1999
Date of Judgment:	21 May 1999