Domino's Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 5)

In the case of Domino's Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 5), the Federal Court addressed the issue of costs incurred due to an adjournment of the final hearing resulting from inadequate discovery by one party, which led to applications by other parties to amend their pleadings. The Precision parties argued that Domino's and Navman should bear the costs thrown away due to the adjournment, suggesting that these costs should be paid on an indemnity basis and that the amount should be determined later.

The legal issues before the court involved determining whether the Precision parties should bear the costs of the adjournment, whether these costs should be paid on a party and party basis or an indemnity basis, and whether the costs should be payable immediately or deferred until the conclusion of the case on its merits. The Precision parties also argued that it was inappropriate to determine the costs at that juncture due to uncertainty about potential duplication of work and the difficulty in assessing such claims before the final hearing.

The court exercised its discretion under section 43 of the Federal Court of Australia Act 1976 (Cth) and concluded that Domino's and Navman should bear the costs thrown away by the adjournment of the trial. The court found that the immediate cause of the adjournment was the inadequate discovery by Precision, and the Precision parties' counsel were available earlier than the scheduled trial dates. Regarding indemnity costs, the court applied the principles from Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2), emphasizing the need to depart from the usual party and party basis only when the circumstances warranted it.

The court ordered that the first to fourth respondents pay the costs thrown away by the adjournment, assessed on a party and party basis. The applications by Domino's and Navman for their costs of the adjournment were dismissed, and no order was made regarding the costs of these interlocutory applications.