Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 3)

[2023] FedCFamC2G 394

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 3) [2023] FedCFamC2G 394  

File number(s):	SYG 1318 of 2020
Judgment of:	JUDGE BAIRD
Date of judgment:	12 May 2023
Catchwords:	PRACTICE AND PROCEDURE – COSTS – exercise of discretion – no matters of principle
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth), ss190, 191, 214
Cases cited:	Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedFamC2G 268
Division:	Division 2 General Federal Law
Number of paragraphs:	15
Date of last submission/s:	2 May 2023
Date of hearing:	Heard on the papers
Place:	Sydney
Counsel for the Applicant:	Mr J Hennessy SC with Mr M Fleming
Solicitor for the Applicant:	Gilbert + Tobin
Counsel for the Respondents:	Mr N Murray SC with Ms F St John
Solicitor for the Respondents:	Allens

ORDERS

SYG 1318 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LIFT SHOP PTY LTD

Applicant

AND:

NEXT LEVEL ELEVATOR PTY LTD

First Respondent

COMPACT LIFTS PTY LTD

Second Respondent

NEXT LEVEL COMPACT LIFTS PTY LTD (and others named in the Schedule)

Third Respondent

order made by:	JUDGE BAIRD
DATE OF ORDER:	12 MAY 2023

THE COURT DIRECTS:

1.By 26 May 2023, the Applicant file and serve its written closing submissions on the Applicant’s interlocutory application filed 25 October 2022 as amended on 10 November 2022 (s 138 Application).

2.By 9 June 2023, the Respondents file and serve their written closing submissions on the s 138 Application. 

BY CONSENT, THE COURT ORDERS:

3.Pursuant to r 15.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the s 138 Application be decided without further oral hearing. 

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BAIRD

1. These reasons concern the applicant’s informal application made on 12 April 2023 upon delivery of my reasons for judgment on the respondents’ application in a proceeding dated 7 November 2022 to set aside notice to produce: Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedFamC2G 268 (NTP Reasons).  The notice was served by the applicant on 7 July 2022 in the course of final hearing.  These reasons should be read in conjunction with the NTP Reasons.

2. On 12 April 2023, upon delivery of the NTP Reasons I made orders that:

   (1)the notice be set aside;

   (2)the applicant to pay the respondents’ costs of and arising from the notice and the respondents’ application to set aside the notice (costs order);

   and further to the applicant’s oral request for time to make written submissions on costs, I ordered:

   (3)paragraph (2) of the orders be stayed for 14 days. 

3. On 26 April 2023, the applicant filed the Applicant’s costs submissions on Respondents’ application to set aside notice to produce.  By email sent 2 May 2023, the respondents’ informed my Chambers that if the Court was minded to vacate or vary the existing costs order (order 2 of 12 April 2023), the respondents would respectfully seek to be heard on that issue.  For the reasons that follow, I have not required to hear from the respondents.

4. The applicant submits that the Court should exercise its discretion under s 214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) to ‘reserve the costs referred to in order 2 of the Orders pending the outcome of the applicant’s amended interlocutory application of 10 November 2022’, that is, the amended s 138 Application.  Thus, what the applicant asks the Court to do is exercise its discretion to set aside, vacate or vary the costs order.

5. The applicant makes two arguments in support of its application.

6. First, the applicant submits that the respondents’ application is an application within an application, namely the s 138 application, that the respondents’ application occupied only a short period of time during the hearing of the two applications in February and March 2023, that there is substantial overlap of evidence, and that the two applications are entwined.  Therefore the question of costs relating to the notice cannot be resolved until the outcome of the s 138 application is known.

7. Secondly, the applicant makes submissions as to its motive in issuing the notice in July 2022, and subsequently in pressing it, as to its relevance in the context of the hearing, and as to the explanation given by the respondents regarding the subject matter of the s 138 application.  The applicant says if it is successful on the s 138 application, it should not be liable for the costs of the notice, as the notice ‘only arose to expose the process by which the documents the subject of the s 138 application were obtained by the respondents’ solicitors’.

8. For the following reasons, I decline to exercise my discretion to vary or set aside the costs order, by substituting an order that costs be reserved as sought by the applicant.

9. As to the first matter, the NTP Reasons identify the context, timing, material relied upon and the submissions made in the hearing and determination of the respondents’ application.  The respondents succeeded in their application to set the notice aside.  The usual order where a part succeeds on an application is that costs follow the event.  This course was followed. 

10. I am not persuaded that the matters relied upon by the applicants summarised in [6] above, whether taken individually or collectively, are such as to enliven my discretion to reserve costs for later argument, in lieu of the costs order. It should not be beyond the capabilities of experienced legal representatives, and the Federal Court’s taxing officers, if required, to resolve issues, if any, of identification of the work and material encompassed by the costs order, including arising from evidence being read in one, or the other, or both applications, and to attribute costs accordingly. I assume, beneficially, that the legal representatives will act professionally, continuing to exercise goodwill and restraint, in participating in the costs exercise, and in the performance of their ongoing obligations under s 191 of the FCFCOA Act to act consistently with the overarching purpose set out in s 190 of that Act.

11. As to the second matter, I reiterate, the notice was set aside: see NTP Reasons.  The s 138 application falls to be determined on the evidence admitted at hearing on the s 138 application.  That evidence does not include the notice, nor, self‑evidently, any documents that may be encompassed by the categories sought by the notice.  I am not persuaded that the applicant’s motives, purposes or states of mind in issuing the notice, or in pressing it, or the respondents’ in seeking to set the notice aside have bearing on the subject matter of the costs order, or on the s 138 application so as to enliven the beneficial exercise of my discretion in the manner sought.

12. The stay has expired.  The costs order is extant. 

13. The parties should proceed to file and serve (and copy to Chambers) their submissions on the s 138 application.  I anticipate that 15 pages should suffice for the parties to set out their submissions.  If the timetable I direct is not reasonably achievable, and the parties have concerns as to the page limit I request, they should liaise and communicate with my Chambers.  If appropriate, I will relist the matter for case management.

14. The parties previously agreed that the s 138 Application is to be decided on the papers without further oral hearing. 

15. I will so order.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird.

Associate:

Dated:       12 May 2023

SCHEDULE OF PARTIES

SYG 1318 of 2020
Respondents
Fourth Respondent:	DANIEL MAWSON
Fifth Respondent:	DAMIEN BOYLE
Sixth Respondent:	EDWARD HUME