Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc

[1998] FCA 1640

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 575 of 1998

BETWEEN:

HI-FERT PTY LIMITED
FIRST APPELLANT

CARGILL FERTILIZER INC
SECOND APPELLANT

AND:

KIUKIANG MARITIME CARRIERS INC
FIRST RESPONDENT

WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED
SECOND RESPONDENT

JUDGES:

BEAUMONT, BRANSON AND EMMETT JJ.

DATE OF ORDER:

 18 DECEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

1. The orders made by the trial Judge on 12 December 1997 be set aside, and in lieu thereof:

(a)order that the first respondent’s notice of motion dated 25 October 1996 be dismissed;  order that the appellants pay the first respondent’s costs of the separate constitutional issue;  otherwise order that the first respondent pay the appellants’ costs of the motion;  costs to be set off.

(b)on the condition stated in para (c) below, order that so much of the proceedings as involves the determination of the matters alleged in para 22 and 25 to 29 inclusive of the amended statement of claim filed on 6 February 1997 be stayed and that the parties be referred to arbitration in respect of those matters.

(c)the condition referred to in para (b) above is that any arbitration in respect of the matters referred to in para (b) be adjourned until after the determination of these proceedings against both respondents including any appeal.

(d)order that otherwise the second respondent’s notice of motion dated 25 October 1996 be dismissed.

(e)order that the appellants pay the second respondent’s costs of the separate constitutional issue;  otherwise order that the second respondent pay the appellants’ costs of the motion;  costs to be set off.

1. The appellants pay the respondents’ costs of the argument of the constitutional issue on the appeal;  otherwise the respondents pay the costs of the appeal;  costs to be set off.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 575 of 1998

BETWEEN:

HI-FERT PTY LIMITED
FIRST APPELLANT

CARGILL FERTILIZER INC
SECOND APPELLANT

AND:

KIUKIANG MARITIME CARRIERS INC
FIRST RESPONDENT

WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED
SECOND RESPONDENT

JUDGES:	BEAUMONT, BRANSON AND EMMETT JJ.
DATE:	18 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT (NO. 2)
(ON COSTS)

THE COURT:

Since the publication of our reasons for judgment on 24 November 1998, we have had the benefit of written submissions on the question of costs.

In our view, the exercise of our judicial discretion in this area should reflect the following material circumstances:  First, that on the separate constitutional issue the appellants failed both at first instance and before us;  and secondly, that on the other issues, the appellants were entirely successful as against the first respondent, and substantially successful as against the second respondent. 

In those circumstances we have concluded that the respondents should be awarded the costs of the argument of the separate constitutional question before the trial Judge and before us;  but that otherwise the appellants should have their costs both at first instance and on appeal;  and that costs be set-off.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Court

Acting Associate:

Dated:             18 December 1998

Counsel for the Appellant:	R B S Macfarlan QC with P E King
Solicitor for the Appellant:	Withnell Hetherington
Counsel for the First Respondent:	J L B Allsop SC with G J Nell
Solicitor for the First Respondent:	James Neill
Counsel for the Second Respondent:	N C Hutley SC with A S Bell
Solicitor for the Second Respondent:	Ebsworth & Ebsworth
Counsel for the Attorney-General:	D M J Bennett QC, Solicitor-General for the Commonwealth with C J Horan
Solicitor for the Attorney-General:	Australian Government Solicitor
Date of written submissions on costs:	9 and 14 December 1998
Date of Judgment (on costs):	18 December 1998