Australian Trade Commission v Disktravel

FEDERAL COURT OF AUSTRALIA

Australian Trade Commission v Disktravel [2000] FCA 62

COSTS – appeal – appellant successful on one issue not successful on others – apportionment of costs – discretion – costs follow event.

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

Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48,134 applied
Cretazzo v Lombardi (1975) 13 SASR 4 applied
Trade Practices Commission v Nicholas Enterprises Pty Ltd(No 3) (1979) 42 FLR 213 cited
Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172 cited

AUSTRALIAN TRADE COMMISSION v DISKTRAVEL, JOHN GAETANO MARIO FIOCCO, DIVOT PTY LTD, HOLDEN BARLOW and CECK INVESTMENTS
W 19 of 1999

FRENCH, KIEFEL AND MANSFIELD JJ
11 FEBRUARY 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 19 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALIAN TRADE COMMISSION
Appellant

AND:

DISKTRAVEL
First Respondent

JOHN GAETANO MARIO FIOCCO
Second Respondent

DIVOT PTY LTD
Third Respondent

HOLDEN BARLOW
Fourth Respondent

CECK INVESTMENTS
Fifth Respondent

JUDGE:

FRENCH, KIEFEL AND MANSFIELD JJ

DATE OF ORDER:

11 FEBRUARY 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The Respondents to pay the Appellant’s costs of the proceedings before the Learned Primary Judge.

2.The orders made on 22 October 1999 are not otherwise varied.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 19 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALIAN TRADE COMMISSION
Appellant

AND:

DISKTRAVEL
First Respondent

JOHN GAETANO MARIO FIOCCO
Second Respondent

DIVOT PTY LTD
Third Respondent

HOLDEN BARLOW
Fourth Respondent

CECK INVESTMENTS
Fifth Respondent

JUDGE:	FRENCH, KIEFEL AND MANSFIELD JJ
DATE:	11 FEBRUARY 2000
PLACE:	PERTH

REASONS FOR JUDGMENT ON QUESTION OF COSTS

THE COURT:

1. On 22 October 1999, the Court gave judgment in this matter making the following orders:

   “1.The appeal is allowed.

   2.The decision of the Learned Primary Judge of 5 February 1999 be set aside and that of the Administrative Appeals Tribunal be set aside in so far as it relates to the respondents to this appeal.

   3.The decision of the appellant notified on 25 October 1996 that each of the respondents to the appeal is “not eligible for a grant under the Export Market Development Grants Act 1974 (Cth) in respect of the claim year 1994-95” be affirmed.

   4.The respondents to pay the appellant’s costs of the appeal.

   5.Liberty to the Respondents to apply by written submission within 14 days to vary the costs order.

   6.The Appellant to file any reply to any such submission within 14 days of the Respondents’ submission.”

2. Written submissions have been received in relation to the question of costs pursuant to the liberty reserved by the Court’s order.  The twelve grounds of appeal in the end raised three substantive issues for determination.…