Cenrin P/L & Anor. v Lamb & Ors. (constituting the Pharmacy Restructuring Authority)

[1993] FCA 334

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JUDGMENT No.	.... ?.i!3.,.../ !,83&

IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	1 No NG 211 of 1991
GENERAL DIVISION	1

BETWEEN: CENRIN PTY LIMITED

First Applicant

AND: GARY IAN SMOKER

Second Applicant

AND :  A. LAMB, N. GARRITTY, K. CARNELL. R. JAMES. K. PHELPS. M. FORD and I. FLETCHER (constitutinq THE PHARMACY RESTRUCTURING AUTHORITY1

First Respondent

AND :  THE HONOURABLE PETER STAPLES (MINISTER OF STATE
FOR AGED, FAMILY AND HEALTH SERVICES1

Second Respondent

AND :  THE COMMONWEALTH OF AUSTRALIA

Third Respondent

AND :  ROBIN ALLAN

Fourth Respondent

AND :  THE PHARMACY GUILD OF AUSTRALIA

Fifth Respondent

AND :  THE SECRETARY OF THE DEPARTMENT OF HEALTH.
HOUSING AND COMMUNITY SERVICES

Sixth Respondent

.. . I _ - MINUTES OF ORDER

JUDGE MAKING ORDER:	Spender J.
DATE OF ORDER:	30 April 1993
WHERE MADE:	Sydney
THE COURT ORDERS THAT:

1.    The applicants pay to the fourth respondent her costs of directions hearings of 15 May 1991, 14 June 1991 and 27 June 1991.

2.    In respect of the costs of the first, second and third respondents of the adjourned hearing on 16 March 1992, such costs be paid by the applicants.

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

3. The first, second, third and sixth respondents have their costs of the claim based on the Trade Practices Act 1974 but the costs of counsel in the hearing in

i	matter which included that claim be limited to the respect of the brief to appear on hearing of the
I	costs of one day.

I	4 .	The applicants have their costs of the application to
!
i	be taxed, if not agreed.

IN THE FEDERAt COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	1 No NG 211 of 1991
GENERAL DIVISION	1

BETWEEN: CENRIN PTY LIMITED

First Applicant

AND: GARY IAN SMOKER

Second Applicant

AND:  A. LAMB. N. GARRITTY, K. CARNELL. R. JAMES, K. PHELPS, M. FORD and I. FLETCHER iconstitutinq THE PHARMACY RESTRUCTURING AUTHORITY1

First Respondent

AND:  THE HONOURABLE PETER STAPLES (MINISTER OF STATE
FOR AGED, FAMILY AND HEALTH SERVICES1

Second Respondent

AND: THE COMMONWEALTH OF AUSTRALIA

Third Respondent

AND: ROBIN ALLAN

Fourth Respondent

AND:  THE PHARMACY GUILD OF AUSTRALIA

Fifth Respondent

AND:  THE SECRETARY OF THE DEPARTMENT OF HEALTH,
HOUSING AND COMMUNITY SERVICES

Sixth Respondent

CORAM :	Spender J.
PLACE :	Sydney
m:	30 April 1993  EX TEMPORE REASONS FOR JUDGMENT

These are applications concerning costs by various parties in what has become rather protracted litigation. The history of the litigation is set out in the affidavit of Robyn Cherie Kathner, filed by leave today. The important matter that that history reveals is that the applicants, for perhaps reasons

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which are understandable in the circumstances, formulated their

various claims in very many ways on a number of occasions.	I
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The Pharmacy Guild was at one stage joined, yet early in the piece it was clear that orders were sought concerning the	1 I
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validity of agreements to which it was a party. There were other !

matters in respect of the central nature of the application which	I
suggest that it shifted over time; focusing at one point on a	, ,
particular matter (initiallythe cancellation, or application for
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compensation that was feared from MS Allen) and on others	!
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focusing on the validity of the guidelines or of the agreements	F
between the Minister and the Pharmacy Guild.
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The matter was listed for directions on fourteen occasions and twice for hearing.	i

There is an estimate referred

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to which seeks to give a broad indication of the number of different amending documents on which the applicants relied. In relation to MS Allen, relief was sought against her, although interlocutory in kind, from the first application in May of 1991.

On three occasions, 15 May, 14 June and 27 June 1991, she

appeared at directions hearings. On the last day, an undertaking

was given by her in respect of making any application for compensation until the determination of the proceedings . The point is made that no such undertaking was sought prior to the institution of proceedings against her, and that there is no good reason why she should not have her costs of the directions hearings that I have referred to. It seems to me that there is nothing that can be said by M r Hughes against this and in the circumstances I order that the applicants pay to the fourth

respondent her costs of the directions hearings of 15 May 1991,
14 June 1991 and 27 June 1991.

So far as the second, third and sixth respondents are concerned, there are three matters. The first concerns the costs of the adjourned hearing on 16 March 1992. The circumstances in which that occurred are referred to in paragraphs 17 et seq. of the affidavit of Mrs Kathner. It plainly was a sensible arrangement that, instead of boxing at shadows, the actual position be at least determined so that there might be then something on which the application for an order of review might bite.

The matter was adjourned but it was made plain by senior counsel for the first, second and third respondents, but not the sixth respondent, that those three respondents would be seeking the costs of any adjournment. Sheppard J reserved the question of costs to be determined at a later date. It seems to me that the costs of the first, second and third respondents of

that adjourned hearing they should be paid by the applicants.	From the material before me there seems to be no basis on which
the sixth respondent might have his costs of the adjourned hearing.
The second and somewhat substantial matter relates to a claim based on the Trade Practices Act 1974 which appears to have loomed large in many of the directions hearings and was the cause of the joinder of some of the respondents. The chronology shows that on 30 October 1992 Mr Shaw QC, senior counsel for the applicants, indicated that that matter would not further be pursued, and the parties for whom Miss Henderson appears today seek their costs in respect of the Trade Practices claim.
It seems to me that the usual rule that a party who brings a claim and subsequently abandons it should have to pay the costs occasioned by his conduct, should apply in the circumstances of this case. However, the respondents are entitled to no more than the costs thrown away by the raising and abandoning of the Trade Practices claim and I order in respect of that matter that the first, second, third and sixth respondents have their costs of the claim based on the Trade Practices Act. However, the costs of counsel in respect of the brief to appear on hearing in respect of the matter which included that claim, are to be limited to the costs of one day.
The final matter relates to what is the fair and just order to be made in the circumstances that the applicants were successful in a claim for relief.
The submission on behalf of some of the respondents is that, in addition to the Trade Practices matter which has already been dealt with by separate order, there were really two aspects of the conduct of the applicants which should persuade the Court not to follow the usual order, namely, that a successful party is entitled to its, his or her costs. First, they contend that the very lengthy interlocutory management of this case, to a large degree, was exacerbated by the lack of precision in the formulation by the applicants of what precise relief they sought

and against whom. n addition, they claim that the number of directions hearings and the numerous amending documents filed on behalf of the applicants should be recognised in a final order as to costs of the application. The second aspect on which a variation from the usual order is sought, is based on the fact that, in respect of a number of issues advanced by the applicants at the trial, the applicants failed. There were not separate causes of action pleaded as is the case in a number of the reported cases dealing with costs.

I am not here concerned with separate issues in the sense of separate causes of action, but it is clear from the judgment of Toohey J. in West Australia Cricket Assn (1nc.L v. Huuhes, that there is power in the Federal Court to recognise, where the costs of the proceedings have been unnecessarily prolonged by the taking of points on which a party fails, a costs order can reflect that conduct.

The matter is not free from difficulty, but it seems there is a recognition there that the respondents are entitled	in particular the order concerning the Trade Practices claim, to me that having regard to the other orders that I have made,
to some of the costs of the various directions hearings that have been heard. Also, they should be recompensed in consideration of the fact that because as a consequence of the Trade Practices claim being brought, there was a prolongation of the number of directions hearings and of indeed the parties to the proceedings.

Furthermore, it is very difficult to see how much longer the case would have taken had the points on which the applicants been unsuccessful not been pressed. The matter took something of the order of a day and a half and the points on which the applicants failed were essentially:-

1)        the allegation that the guidelines were invalid (which admittedly was a substantial arrow in the quiver of the applicants);

2)        the purported cancellation by backdating of 16 April 1972 had the effect that there was no cancellation at all.

The latter matter was quite a short matter.

I am not persuaded in all the circumstances that I

should depart from the ordinary rule, and apart fromthe special orders that I have made dealing with particular matters of costs, I order that the applicants have their costs of the application, to be taxed if not agreed.

I cer t i fy t h a t t h i s and t h e preceding five

a	t r u e c o p y o f t h e reasons f o r
of t h e Honourable Mr J u s t i c e

A n

-dieii_ny Act ing Assoc ia t e

Date: 30 Apr i l 1993