BT Australasia Pty Ltd v New South Wales

[1996] FCA 1167

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 572 of 1995
GENERAL DIVISION                 )

BETWEEN:

BT AUSTRALASIA PTY LTD
  Applicant

AND:

NEW SOUTH WALES
  First Respondent

TELSTRA CORPORATION LTD
  Second Respondent

Coram:    Sackville J.
Place:    Sydney
Date:     13 March, 1996

REASONS FOR JUDGMENT

An issue has arisen in relation to the costs of two Notices of Motion.  The first is a Notice of Motion, filed on 16 February 1996 on behalf of the first respondent, seeking orders that the time for filing and service of its proposed cross-claim be extended to a date fixed by the Court and that the first respondent be granted leave to join British Telecom plc as the second cross-respondent to the proceedings.

The second Notice of Motion was filed by the applicant on 16 January 1996.  It seeks orders that the first respondent not be permitted to file or serve a cross-claim unless granted leave by the Court to do so.  The second Notice of Motion also seeks alternative orders on this issue.  The background to these Notices of Motion is that consent orders were filed requiring the first respondent to file its cross-claim by 11 December 1995.  It did not do so.  However, the draft cross-claim was annexed to an affidavit filed on behalf of the first respondent on 16 February 1996.

Mr Garnsey QC, who appears with Mr Margo for the applicant, seeks orders requiring the first respondent to pay:

1.costs thrown away by the applicant, by reason of the delay in the first respondent's filing of the cross-claim; and

2.costs of the motions.

It is not now disputed that the first respondent should have leave to file its cross-claim.  Nor is it disputed that, in any event, the Federal Court Rules require the first respondent to obtain leave to file that cross-claim. 

I should say, at the outset, that I do not encourage non-compliance with the court's orders.  If the first respondent was not able to comply with the directions of the Court, as Mr Muddle asserted was the position, that should have been drawn to the Court's attention at the earliest opportunity and an explanation should have been proffered.  Nonetheless, it is also appropriate to add that, in the circumstances, and having regard to the nature of the matters pleaded in the cross-claim, the delay in producing the draft cross-claim is by no means excessive.

In the circumstances, I do not see any basis for awarding the applicant the costs thrown away by the failure to comply with the timetable.  The correspondence makes it quite clear that the first respondent always intended to file its cross-claim, albeit that it was unable to comply with the agreed timetable.  It was not reasonable for the applicant in these circumstances to act on an assumption that the cross-claim would not be filed, if indeed that is what occurred.

There was no evidence adduced that the applicant unavoidably incurred costs by reason of the first respondent's delay in preparing the cross-claim.  Until a cross-claim is filed there is, of course, no obligation upon an applicant to do anything.  In the absence of evidence of the kind to which I have referred, I do not think that the applicant has established that additional costs were incurred, or could be attributed to the delay in filing the cross-claim. 

Nor do I think, having regard to the concession that leave to file the cross-claim should be granted, is there a basis for awarding the applicant the costs of the Notices of Motion.  Leave was always required and it has now been granted. 

In my view, each party should bear its own costs of the Notices of Motion, insofar as the Notices of Motion relate to the issues raised by the proposed cross-claim.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:22 March, 1996

Heard:13 March, 1996

Place:            Sydney

Decision:13 March, 1996

Appearances:Mr J.J. Garnsey QC with Mr R. Margo, instructed by Middletons Moore & Bevins, appeared for the applicant.

Mr W. Muddle, instructed by the Crown Solicitors Office, appeared for the first respondent.

Mr J. Stevenson, instructed by Blake Dawson Waldron, Solicitors, appeared for the second respondent.