Narellan Pools Pty Ltd v Compass Ceramic Composite Pty Ltd
[1996] FCA 296
•2 Apr 1996
CATCHWORDS
Practice and procedure - motion seeking orders for payment of costs forthwith and leave to tax a bill of costs forthwith under O 62 r 3 rr (2) and (3) of the Federal Court Rules - general rule applicable - whether circumstances bring these proceedings within some category of exception
Federal Court Rules O 62 r 3 rr (2), (3)
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 14) Lindgren J, 18 August 1995, unreported, referred
NARELLAN POOLS PTY LIMITED & ORS. v COMPASS CERAMIC COMPOSITE PTY LIMITED
No. NG 943 of 1995
CORAM:Lehane J
PLACE:Sydney
DATE:2 April 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG 943 of 1995
BETWEEN:NARELLAN POOLS PTY LTD
(A.C.N. 003 607 681)
First Applicant
INTERNATIONAL POOLS (AUST) PTY LIMITED
(A.C.N. 003 119 444) AND
GABRON PTY LIMITED (A.C.N. 003 938 770)
Second Applicants
FIBRE-TEK (GOLD COAST) PTY LIMITED
(A.C.N. 010 811 980)
Third Applicant
AND:COMPASS CERAMIC COMPOSITE PTY LIMITED
(A.C.N. 001 921 384)
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:2 April 1996
MINUTE OF ORDERS
THE COURT ORDERS:
THAT the motion be dismissed.
THAT the respondent pay the applicant's costs of the motion (that is the motion in paragraph 1 of the notice of motion), and the costs of this morning's proceedings.
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 )
GENERAL DIVISION ) No. NG 943 of 1995
BETWEEN:NARELLAN POOLS PTY LIMITED
(A.C.N. 003 607 681)
First Applicant
INTERNATIONAL POOLS (AUST) PTY LIMITED
(A.C.N. 003 119 444) AND
GABRON PTY LIMITED (A.C.N. 003 938 770)
Second Applicants
FIBRE-TEK (GOLD COAST) PTY LIMITED
(A.C.N. 010 811 980)
Third Applicant
AND:COMPASS CERAMIC COMPOSITE PTY LIMITED
(A.C.N. 001 921 384)
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:2 April 1996
EXTEMPORE REASONS FOR JUDGMENT
LEHANE J: This is a motion seeking orders under Order 62 rule 3 sub-rules (2) and (3) of the Federal Court Rules for payment of costs forthwith and granting leave to tax a bill of costs forthwith. As Lindgren J said in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 14) 18 August 1995 unreported, these are sub‑rules that, to put it neutrally, appear not to have been much used.
The costs concerned are those of an unsuccessful motion by which the applicant sought interlocutory relief: I heard the motion in December and I made an order for costs in favour of the respondent.
Undoubtedly the general rule is, as sub-rule (3) recognises, that a bill of costs in respect of interlocutory proceedings, where an order for costs is made in favour of one of the parties, is not to be taxed and the costs, therefore, are not to be paid until the principal proceeding is concluded. Mr Walton, for the respondent, argues that this proceeding should be regarded as outside the ordinary course.
He advances three principal reasons for that submission. First, he submits, the orders made in the interlocutory proceedings were, in effect, final. That is to say they finally determined the question of entitlement to interlocutory relief of the kind sought. Secondly, he says that these proceedings are likely to extend over a considerable period of time. The order for costs in favour of his client was made in December; a final hearing is unlikely to occur at least for several months. All of that, undoubtedly, is true. Thirdly, Mr Walton argues that there is in effect a spectrum of interlocutory orders, at one end of which is an order of the kind which I made in December and, at the other, a mere administrative order or direction including, perhaps, the order which I shall make at the conclusion of these reasons. Matters such as orders on strike out motions, apparently, lie somewhere between the two.
Mr Gleeson, on the other hand, argues that there is nothing out of the ordinary course in relation to the December interlocutory proceedings, or the costs of them, which would justify a special order under sub-rule (2) or (3). He put forward two rationales for the general rule, one relating to efficiency, the other relating to set off.
I confess that I find the argument about efficiency somewhat more convincing than the argument about set off.
The argument about efficiency relates to the spectrum argument in the following way. For the purpose of a discretion of the kind which the Court is called upon to exercise under these sub-rules, one must assume that in each case in which the court has to consider such a question it is dealing with an order for costs made in favour of one party or the other. That, of course, is self-evident: there can be no room for the application of rules of this sort where, in the other common case, costs have been reserved. What I find rather difficult to see is why, in a case where a costs order has been made in favour of one party, it is particularly relevant to any discretionary consideration arising under this rule to ask at what point, in the spectrum posited, the particular interlocutory proceedings occur.
It is, after all, perfectly possible to conceive of a case, and this may turn out to be one, where there are a series of interlocutory applications occurring at various points along the spectrum in a number of which orders for costs may be made in favour of one party or the other. That, I suppose, illustrates the justification for the ordinary rule that those costs are not to be taxed or paid until the principal proceedings are concluded. For the purpose of applying sub‑rules (2) and (3), I can see no obvious reason to discriminate between costs orders - by requiring immediate payment in some, but not in others - on the basis of their respective positions on the spectrum.
If, as I think one should, one looks at it from that point of view, while I can see considerable force in the observations attributed to Lindgren J to which I have referred, I find it difficult to see a relevant matter in relation to these proceedings which takes the orders made in the interlocutory proceedings in December outside the ordinary course and into some category of exception. For those reasons, I think the motion should be refused and I dismiss it.
I order that the respondent pay the applicant's costs of the motion before me this morning (that in paragraph 1 of the notice of motion), and the costs of this morning's proceedings.
I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated: 18 April 1996
Heard: 2 April 1996
Place: Sydney
Decision: 2 April 1996
Appearances: Mr J T Gleeson of counsel instructed by Kalyk Nash Lawyers appeared for the applicants.
Mr M Walton of counsel instructed by Levingstons appeared for the respondent.
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