Food Channel Network Pty Ltd v Television Food Network GP (No 3)

[2010] FCAFC 158

FEDERAL COURT OF AUSTRALIA

Food Channel Network Pty Ltd v Television Food Network GP (No 3) [2010] FCAFC 158

Citation:		Food Channel Network Pty Ltd v Television Food Network GP (No 3) [2010] FCAFC 158
Appeal from:		Television Food Network, G.P. v Food Channel Network Pty Ltd (No 2) [2009] FCA 271
Parties:		FOOD CHANNEL NETWORK PTY LTD ACN 079 015 339 v TELEVISION FOOD NETWORK GP
File number:		QUD 132 of 2009
Judges:		KEANE CJ, STONE AND JAGOT JJ
Date of judgment:		21 December 2010
Catchwords:		PRACTICE AND PROCEDURE – application to court for costs order to be amended – whether order should be amended
Date of hearing:	Determined on the papers
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	Mr L Stephens
Solicitor for the Appellant:	Potts & Co Lawyers
Solicitor for the Respondent:	Ms N Braad of Bennett & Philp Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 132 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FOOD CHANNEL NETWORK PTY LTD ACN 079 015 339 Appellant
AND:	TELEVISION FOOD NETWORK GP Respondent

JUDGES:	KEANE CJ, STONE AND JAGOT JJ
DATE OF ORDER:	21 DECEMBER 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for the Court’s orders of 2 June 2010 to be altered be dismissed.

2.Each party bear its own costs of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 132 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FOOD CHANNEL NETWORK PTY LTD ACN 079 015 339 Appellant
AND:	TELEVISION FOOD NETWORK, GP Respondent

JUDGES:	KEANE CJ, STONE AND JAGOT JJ
DATE:	21 DECEMBER 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, Food Channel Network Pty Ltd (FCN), seeks an order for the repayment of $8,039.90 paid by it to Television Food Network GP (TFN) in discharge of an order for costs which order was set aside on appeal to this Court by orders made on 2 June 2010.  FCN argues that the orders of this Court made on 2 June 2010 should have included an order for the repayment of the $8,039.90 and that the omission of such an order may, and should, be corrected pursuant to O35 r 7(3) of the Federal Court Rules (the slip rule).

2. It is not necessary to determine whether orders sought by FCN may be made under the slip rule.  That is because, even if the order sought by FCN is one which might be made under the slip rule, TFN is entitled to payment by FCN of $16,415.95 pursuant to a certificate of taxation in another matter in the Federal Court.  TFN now accepts that FCN is entitled to reduce the amount payable to it by FCN under the certificate of taxation by the sum of $8,039.90.

3. In these circumstances, whether or not TFN is strictly entitled to set the sum of $8,039.90 off against FCN’s debt of $16,415.95, the Court’s discretion is broad enough to recognise that substantial justice is best done by leaving FCN indebted to TFN in the sum of $8,376.05, rather than to compel TFN to pursue FCN for the recovery amount of $16,415.95.

4. FCN’s application to this Court should be dismissed.

5. The circumstances which led to FCN’s application to this Court reflect a level of unreasonableness on each side.  FCN should have recognised that its claim against TFN was exceeded by its debt to TFN and TFN could and should have recognised FCN’s claim to set off more promptly.  In order to mark its disapproval of the unreasonableness of the parties, the Court is not disposed to make any order in relation to the costs of the application in favour of either party.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Keane CJ, Stone and Jagot JJ.

Associate:

Dated:        21 December 2010