Nilant, Charles Philippe Louis v Plexipack Packaging Services Pty Ltd

[1997] FCA 880

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - costs - respondent successful in action - whether respondent entitled to order that one‑third reduction in costs not apply - whether Federal Court appropriate forum in any event given nature and complexity of matter

Federal Court Rules 1978 (Cth), Order 62 rule 36A(1)

CHARLES PHILIPPE LOUIS NILANT v PLEXIPACK PACKAGING SERVICES PTY LTD (ACN 005 388 778)
WG 3053 of 1995

R D NICHOLSON J

PERTH

18  AUGUST 1997

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 3053 of 1995
GENERAL DIVISION

BETWEEN:              

CHARLES PHILIPPE LOUIS NILANT

Applicant

AND:  

PLEXIPACK PACKAGING SERVICES PTY LTD (ACN 005 388 778)
Respondent

JUDGE:	R D NICHOLSON J
DATE OF ORDER:	18 AUGUST 1997
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The motion be dismissed.

1. The applicant pay the respondent's costs of the motion.

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

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 3053 of 1995
GENERAL DIVISION

BETWEEN:

CHARLES PHILIPPE LOUIS NILANT

Applicant

AND:

PLEXIPACK PACKAGING SERVICES PTY LTD (ACN 005 388 778)

Respondent

JUDGE:	R D NICHOLSON J
DATE OF ORDER:	18 AUGUST 1997
WHERE MADE:	PERTH

REASONS FOR JUDGMENT (EX TEMPORE)

HIS HONOUR:  This  is a motion brought on behalf of the respondent for orders that the provisions of O 62 r 36A(1) of the Federal Court Rules 1978 (Cth) not apply to the costs order in the respondent's favour made on 30 August 1996 and the applicant pay the respondent's costs as taxed or agreed without the one‑third reduction being applied together with the costs of the motion.

In this matter the applicant applied as liquidator of a company for a declaration that payment of two sums by the company to the respondent were void transactions and an order the respondent repay to the applicant the total sum of $6,582.  For reasons which were published on 30 August 1996 I considered the application should be dismissed.  The orders made on that date were to that effect so far as it related to one of the payments, the other having been the subject of consent, and that "the applicant pay the respondent's costs of the application".  The position, therefore, as at 30 August 1996 was judgment of dismissal had been entered to that extent and the successful respondent had an order for costs in its favour.

Order 62 r 36A(1) reads:

"Where a party is awarded judgment for less than $100,000 on a claim (not including a cross‑claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one‑third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders."

The first submission on behalf of the respondent is the order is not applicable.  That submission is made on the basis the applicant's claim had been dismissed with costs and it is apparent on the construction of the rule it is not applicable where a defendant is successful.

Turning to the words in the rule, it is not in dispute the word "party" is capable of reference to persons other than an applicant.  It may be that word is chosen in order to permit an application of the rule to a cross‑claimant as well as an applicant.  Whether or not that is the case, there must be a party who satisfies the other words of the rule - that is, there must be a party "awarded judgment for less than $100,000 on a claim...for a money sum or damages".  Given there was a claim for repayment of the total sum, the latter words would be satisfied in this case.  However, there is no judgment of the requisite type; the only order is one dismissing the claim.  There is, therefore, no party able to satisfy the requirements of the opening words.  In my view the respondent is correct in the submission the order is simply not applicable.

The alternative submission, which is strictly not necessary to turn to, was to the effect the Federal Court was in any event an appropriate forum given the complexity and nature of this matter, so the Court should exercise its discretion in favour of determining the rule should not apply.  There is much to be said for that view, indeed it is supported by submissions for the respondent to this motion (the applicant in the action) that the forum was chosen because of its attributes of speed and mediation.  There was also introduced a change to the law after the commencement of the action which opened up the possibility of reference to another forum but the fact is that option did not exist when this action was instituted.  No discretion now falls to be exercised on those factors although it would appear the circumstances referred to might have supported a resolution of the alternative submission in favour of the present applicant (the respondent in the action).

The motion seeks an order that the provisions of the rule not apply.  That was presumably formulated having in mind the power of the Court to "otherwise order" pursuant to the rule.  The view I have reached is the rule is not applicable in any event; therefore no such power arises.  It seems to follow, no declaration having been sought as to the meaning of the rule, that it is sufficient if having expressed the above opinion I dismiss the motion.  That leaves the question of costs as to which I will hear the parties.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson

Associate:

Dated:             
Counsel for the Applicant:  J K Panegyres
Solicitor for the Applicant:  Williams & Hughes
Counsel for the Respondent:  D A Lenhoff
Solicitor for the Respondent:  Pullinger Stewart

Date of Hearing:  18 August 1997
Date of Judgment:  18 August 1997