Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd

[2009] FCAFC 40

FEDERAL COURT OF AUSTRALIA

Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40

Federal Court of Australia Act 1976 Order 23 rule 11(6)

Black v Lipovac (1998) 217 ALR 386 followed
Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 cited
McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 519 cited
Morgan v Johnson (1998) 44 NSWLR 58 followed
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 followed
Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 followed
Seven Network Ltd v News Ltd [2007] FCA1489 cited

FUTURETRONICS.COM.AU PTY LIMITED (ACN 006 327 386) v GRAPHIX LABELS PTY LTD (ACN 005 771 773) and JOHN ATTA

VID 512 of 2008

TAMBERLIN, FINN AND SUNDBERG JJ
27 MARCH 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 512 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FUTURETRONICS.COM.AU PTY LIMITED
(ACN 006 327 386)
Appellant

AND:

GRAPHIX LABELS PTY LTD (ACN 005 771 773)
First Respondent

JOHN ATTA
Second Respondent

JUDGES:	TAMBERLIN, FINN AND SUNDBERG JJ
DATE OF ORDER:	27 MARCH 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondents have their costs of the appeal incurred up to 11 am on 8 November 2008 on a party and party basis and thereafter on an indemnity basis.

2.The appellant pay the respondents’ costs of the application for indemnity costs.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 512 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FUTURETRONICS.COM.AU PTY LIMITED
(ACN 006 327 386)
Appellant

AND:

GRAPHIX LABELS PTY LTD (ACN 005 771 773)
First Respondent

JOHN ATTA
Second Respondent

JUDGES:	TAMBERLIN, FINN AND SUNDBERG JJ
DATE:	27 MARCH 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 23 January 2009 the Court dismissed the appellant’s appeal from a judgment of Besanko J and ordered that the appellant pay the respondents’ costs of the appeal: Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2. On the handing down of judgment the respondents’ solicitor foreshadowed an application for indemnity costs in connection with the appeal. The parties adopted the Court’s suggestion that the matter proceed by way of written submissions, the last of which were filed on 11 March 2009.

2. The respondents relied on the affidavit of Luke Merrick, which disclosed the following events:

   ·On or about 2 July 2008 the appellant filed its notice of appeal.

   ·On 26 August 2008 Mr Merrick sent a letter to the appellant’s solicitors setting out the reasons why, in the respondents’ view, the appeal would not be successful, and offering to resolve the appeal on the basis that it be discontinued with no order as to costs.

   ·On 7 November 2008…