Pacific Publications Pty Ltd v Next Publishing Pty Ltd

FEDERAL COURT OF AUSTRALIA

Pacific Publications Pty Limited v Next Publishing Pty Limited [2005] FCA 971

COSTS – indemnity costs – solicitor and client costs – exercise of discretion to award costs – factors to be taken into account in making a special order as to costs – whether history of matter disclosed special or unusual features so as to warrant an award of indemnity or solicitor and client costs – whether applicant failed to recognise that its application would inevitably fail – whether applicant’s refusal of offer of compromise was unreasonable or imprudent – whether proceedings were commenced for an improper purpose – whether conduct of proceedings was inappropriate

Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules O 62

Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 referred to
Ruddock v Vardalis (2001) 115 FCR 229 referred to
InterTAN Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54 referred to
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 applied
John S Hayes and Associates Pty Ltd v Kimberley-Clarke Australia Pty Ltd (1994) 52 FCR 201 referred to
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 applied
NMFM Property Pty Ltd v Citibank (2001) 109 FCR 77 applied
MGICA (1992) Ltd v Kenny and Good Pty Ltd (No. 2) (1996) 70 FCR 236 applied
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 referred to
Hobartville Stud v Union Insurance Co Ltd (1991) 25 NSWLR 358 referred to
Williams v Commonwealth Bank of Australia [1995] FCA 992 referred to
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers - Western Australia Branch (No 2) (1993) 46 IR 301 applied

PACIFIC PUBLICATIONS PTY LIMITED (ACN 097 410 986) v NEXT PUBLISHING PTY LIMITED (ACN 002 647 645)
NSD 1569 OF 2004

TAMBERLIN J
SYDNEY
14 JULY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1569 OF 2004

BETWEEN:	PACIFIC PUBLICATIONS PTY LIMITED (ACN 097 410 896) APPLICANT
AND:	NEXT PUBLISHING PTY LIMITED (ACN 002 647 645) RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The applicant is to pay the costs of the respondent on a party and party basis.

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	NSD 1569 OF 2004

BETWEEN:	PACIFIC PUBLICATIONS PTY LIMITED (ACN 097 410 896) APPLICANT
AND:	NEXT PUBLISHING PTY LIMITED (ACN 002 647 645) RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	14 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 18 May 2005, I published my Reasons for Judgment in this matter and ordered that the application be dismissed with costs.

2. The respondent, Next Publishing Pty Limited (“Next”), seeks an order that the applicant, Pacific Publications Pty Limited (“Pacific”), pay its costs on an indemnity basis or, alternatively, on a…