Kingswood Distillery Pty Ltd v Comptroller-General of Customs

[1995] FCA 190

LIMITED DISTRIBUTION ONLY

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 812 of 1992
  )    NG 833 of 1992
GENERAL DIVISION                 )

BETWEEN:     KINGSWOOD DISTILLERY PTY LIMITED

Applicant

AND:     COMPTROLLER-GENERAL OF CUSTOMS

First Respondent

KEVIN MURPHY

Second Respondent

JOHN McDERMOTT

Third Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 17 March 1995

REASONS FOR JUDGMENT

BURCHETT J.:

The circumstances of this case inevitably involve that I have to take somewhat of a broad brush to the exercise of the court's undoubted discretion in respect of costs.  It is clear that in some sense the applicant had some success in the litigation, and that is indicated by the first respondent's willingness to bear the costs of the applications for interlocutory relief which were successful before Davies J.  Thereafter, the applications the subject of the present application for costs, namely numbers 812 and 833 of 1992, followed a somewhat desultory course.  There is, perhaps, some degree of blame attributable to each party for that course.  At least the applicant concedes some responsibility for it.  It asserts also that some responsibility lies with the first respondent, although the first respondent does not make a similar concession.  At any rate, one has to take account of the fact that the matter did proceed in a somewhat dilatory fashion.

The concessions that were made by the first respondent were concessions which did not acknowledge that the proceedings were justified or would succeed.  But nevertheless the fact is that one of the major issues which had, it seems to me, placed the applicant in the position where it was required to bring the proceedings, and obtain the interlocutory relief and thereafter support its continuance by continuing the proceedings, was later no longer persisted in by the first respondent.  That was the question relating to certain particular alleged deficiencies in respect of the alcohol claimed to have been produced in the distillery.

My attention has been drawn by Mr Elliott to s. 50 of the Distillation Act 1901, which makes it clear that the Collector did have a relevant duty which he was seeking to carry out. Nevertheless, he was making an assertion which he no longer pursues. The other issue which led to the proceedings was the safety issue. That is no longer pursued, but the absence of pursuit of it is at least as consistent with the view that safety matters had improved between the time of the institution of the proceedings and the time of their discontinuance, as it is with any other view more favourable to the applicant.

Having regard to all those aspects of the matter, and taking, as I have said I think I must, a fairly broad brush approach, I think it is appropriate to order that the applicant have two fifths of its costs of the proceeding, but subject to the orders for costs against it that have been made on certain particular occasions, which will have to be taxed or otherwise quantified.  I think it is appropriate also that the applicant have half its costs of the application for costs.  The reason I reduce this to half is that, although ultimately I should pay tribute to the sensible manner in which the application has been presented by both sides, I think that at earlier stages this application for costs was not so sensibly dealt with, and I should reflect that in the costs order in relation to it.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 4 April 1995

Counsel for the Applicant:       Dr G.A. Flick S.C.

Solicitors for the Applicant:        Margiotta

Counsel for the Respondents:     Mr G.M. Elliott

Solicitor for the Respondents:    Australian Government Solicitor

Date of hearing:                 17 March 1995