Media Ocean Limited v Optus Mobile Pty Limited (No 3)

[2009] FCA 460

FEDERAL COURT OF AUSTRALIA

Media Ocean Limited v Optus Mobile Pty Limited (No 3) [2009] FCA 460

MEDIA OCEAN LIMITED and MEDIATEL AUSTRALIA PTY LIMITED v OPTUS MOBILE PTY LIMITED

NSD 242 of 2009

PERRAM J
12 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 242 of 2009

BETWEEN:

MEDIA OCEAN LIMITED
First Applicant

MEDIATEL AUSTRALIA PTY LIMITED
Second Applicant

AND: OPTUS MOBILE PTY LIMITED
Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	12 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.There be no order as to 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 242 of 2009

BETWEEN:

MEDIA OCEAN LIMITED
First Applicant

MEDIATEL AUSTRALIA PTY LIMITED
Second Applicant

AND: OPTUS MOBILE PTY LIMITED
Respondent

JUDGE:	PERRAM J
DATE:	12 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding was commenced on 25 March 2009.  Shortly thereafter, on 2 April 2009, the respondent (“Optus”) filed a notice of motion seeking a number of heads of relief, but pertinently seeking security for its costs.  There have been a number of interlocutory steps taken since that time, including a foray involving a notice to produce and a number of matters touching upon the status of the pleadings.  The notice of motion in relation to security for costs has itself been before the Court on more than one occasion.  I was told from the bar table today that the original amount sought by Optus for its security was in excess of $350,000.

2. The Court was provided, prior to this morning’s hearing, with a document entitled “Consent Orders”, which were largely agreed between the parties.  There was one matter in those orders which was not agreed and I have resolved that already.  Leaving that matter to one side, which was of a minor nature, the parties have managed to reach agreement about the question of security.  In the events which have transpired, the applicants have provided $300,000 as security.  It is difficult to avoid the conclusion that there has been an element of compromise between the parties.

3. The element of compromise would not appear to be large, but neither is it trivial.  In that circumstance, it seems to me there is no reason not to apply the well-known statement by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625 which provides that in cases such as the present, one is to avoid, if at all possible, trying the substantive application in order to determine the proper outcome of the costs order. Where the parties have both acted reasonably it will often be appropriate not to make any costs order.

4. It seems to me that on that basis the appropriate order is that there be no order as to costs in relation to the security for costs application.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        25 May 2009

Counsel for the Applicants:	Mr F Kunç SC with Mr CN Bova
Solicitors for the Applicants:	Marque Lawyers
Counsel for the Respondent:	Mr RG McHugh SC with Mr JAC Potts
Solicitors for the Respondent:	Minter Ellison

Date of Hearing:	12 May 2009
Date of Judgment:	12 May 2009