Collier Constructions Pty Ltd v Foskett Pty Ltd - [1992] FCA 32

Re: COLLIER CONSTRUCTIONS PTY LTD
And: FOSKETT PTY LIMITED
No. WA G91 of 1990
FED No. 32
Costs
(1992) 33 FCR 591

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Costs - trial as to liability only - declaratory relief - whether judgment for less than $50,000 on money claim - whether O.62 sub-r.36A(1) applies - whether as a matter of discretion the rule ought to apply - applicability of O.62 sub-r.36A(2).

Trade Practices Act 1974 s.52

Federal Court Rules O.62 sub-r.36A(1) and (2)

HEARING

PERTH

#DATE 3:2:1992

Counsel for the Applicant: Mr M.W. Odes

Solicitors for the Applicant: Parker and Parker

Counsel for the Respondent: Mr D. O'Dea

Solicitors for the Respondent: Bennett and Co.

ORDER

Order 62 sub-rule 36A(1) does not apply to the order for costs made by Gummow J. on 15 October 1990.

The respondent to pay the applicant's costs of today's motion in any event.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is a motion in proceedings which were commenced on 9 August 1990 and in which the applicant sought a variety of declaratory and injunctive orders, damages on account of profits and other relief. The application related to the advertising of "spec homes" by the respondent building company in various newspapers published in or about August 1990. The causes of action relied upon included infringement of the applicant's copyright in certain house plans by the reproduction of outlines indicating the shape and dimensions of the perimeters of those house designs for the purposes of comparison with the respondent's product.

Reliance was also placed upon s.52 of the Trade Practices Act 1974 with respect to certain statements about pricing and other elements of the service offered by the respondent to prospective customers. The respondent was also alleged to have breached an agreement made between the parties in relation to the advertisements.
The matter came on for an expedited trial before Gummow J. who gave judgment on 15 October 1990 on questions of liability only. His Honour dismissed the applicant's claim so far as it related to copyright but made declarations to the effect that the respondent had contravened s.52 of the Trade Practices Act in relation to three specified advertisements, and that it had breached its contract with the applicant, the terms of which were contained in a document headed "Minute of Agreement of the Parties". His Honour also ordered that the proceedings be stood over to be restored to the list in Perth on the application of either party on seven days written notice for directions as to the determination of any issues as to damages pursuant to the declarations and that they be otherwise dismissed. He then made a costs order in the following terms:

"The applicant be awarded one half of its costs of the proceedings insofar as they relate to the issues tried before Gummow J."

There was a subsequent appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] FCA 32
Decision Date: 03 FEBRUARY 1992

CaseChat Overview and Summary

Collier Constructions Pty Ltd was involved in a dispute with Foskett Pty Ltd, which was heard in the Federal Court of Australia. The primary contention of the case was regarding the allocation of costs following a trial limited to the issue of liability only, with the additional pursuit of declaratory relief. The crux of the dispute was whether the monetary claim was for an amount less than $50,000, and if so, whether Order 62 sub-rule 36A(1) of the Federal Court Rules applied to the costs order made by Gummow J. on 15 October 1990. Additionally, the court needed to determine if, as a matter of discretion, the rule should apply, and if Order 62 sub-rule 36A(2) was relevant in this context.

The court had to ascertain whether the costs order was governed by Order 62 sub-rule 36A(1), which stipulates the manner of costs recovery when the claim is for a sum less than $50,000. The interpretation and application of this rule were central to the case, as was the discretionary power of the court to apply it even if the monetary claim was less than the specified threshold. The court's reasoning involved a detailed examination of the relevant provisions and case law to determine the applicability of the rule to the specific circumstances of the case.

After careful consideration, the court concluded that Order 62 sub-rule 36A(1) did not apply to the costs order made by Gummow J. on 15 October 1990. However, the court ordered that the respondent should pay the applicant's costs associated with the motion, irrespective of the applicability of the rule. This decision highlights the importance of understanding the specific conditions under which certain procedural rules apply and the discretion retained by the court in managing such matters. The final orders, as noted, were to be dealt with under Order 36 of the Federal Court Rules.

Orders

Orders of the court

Order 62 sub-rule 36A(1) does not apply to the order for costs made by Gummow J. on 15 October 1990.

The respondent to pay the applicant's costs of today's motion in any event.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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