GS Technology Pty Ltd v Elster Metering Pty Ltd (No 2)
[2008] FCA 315
•11 March 2008
FEDERAL COURT OF AUSTRALIA
GS Technology Pty Ltd v Elster Metering Pty Ltd (No 2) [2008] FCA 315
Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules Order 62 rule 15Cummings v Lewis (1993) 113 ALR 285 cited
Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 consideredGS TECHNOLOGY PTY LTD v ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD) AND GSA INDUSTRIES (AUST) PTY LTD
QUD 46 OF 2000SPENDER J
11 MARCH 2008
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 46 OF 2000
BETWEEN:
GS TECHNOLOGY PTY LTD
ApplicantAND:
ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD)
First RespondentGSA INDUSTRIES (AUST) PTY LTD
Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
11 MARCH 2008
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.
2.The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 46 OF 2000
BETWEEN:
GS TECHNOLOGY PTY LTD
ApplicantAND:
ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD)
First RespondentGSA INDUSTRIES (AUST) PTY LTD
Second Respondent
JUDGE:
SPENDER J
DATE:
11 MARCH 2008
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 18 January 2008, I pronounced judgment in respect of a number of Notices of Motion in proceedings QUD 46 of 2000.
On that day, I made the following directions:
1.Any submissions concerning costs by the first respondent, including a draft of the orders which it wishes the Court to make should be filed and served within seven days.
2.Any submissions concerning costs by the second respondent, including a draft of the orders which it wishes the Court to make should be filed and served within seven days.
3.Any submissions the applicant wishes to make concerning costs, and a draft of the orders it wishes the Court to make, should be filed and served within a further seven days.
On 25 January 2008, the first respondent filed written submission on the costs, and on 30 January 2008, the second respondent filed written submissions on costs. No submissions have been filed by the applicant.
Section 43 of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction to award costs, and ss 43(2) provides that the award of costs is in the discretion of the Court.
The principles which guide the exercise of the discretion were summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136. See also Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 324-9. It can be said that ordinarily costs follow the event, and a successful litigant is entitled to its costs in the absence of special circumstances justifying some other order. In these circumstances, the ordinary rule should apply.
Reserved costs are picked up by Order 62 r 15 of the Federal Court Rules, which rule provides:
Where the costs of a motion, application or other proceeding are reserved by the Court or a Judge, the costs so reserved shall follow the event unless the Court or a Judge otherwise orders.
I therefore make the following orders.
1.The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.
2.The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 11 March 2008
Counsel for the Applicant: Mr A Vasta QC with Mr DG Eliades Solicitor for the Applicant: Fox Lawyers Counsel for the First Respondent: Ms H Bowskill Solicitor for the First Respondent: Blake Dawson Waldron Lawyers Counsel for the Second Respondent: Mr S O’Bryan SC Solicitor for the Second Respondent: Peter Black & Associates Date of Hearing: 18 January 2008 Date of Judgment: 11 March 2008
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