Paul Dainty Corp Pty Ltd v National Tennis Centre Trust

[1988] FCA 839

b39 1 r98b

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY	) No. VG255 of 1988
GENERAL DIVISION	1

BETWEEN: THE DAINTY PAUL

CORPORATION PTY. LTD. AND
PAUL DAINTY PRODUCTIONS

PTY. LTD.

Applicants

AND :  THE NAT I ONAL TENNIS

- CENTRE TRUST AND THE

VICTORIAN ARTS CENTRE

TRUST OLYMPIC PARK

MANAGEMENT

Respondents

MINUTES OF ORDER

CORAM :	Jenkinson J.
PLACE :	Melbourne
DATE :	16 August, 1988
THE COURT ORDERS	THAT:
( NOTE :	Settlement and entry of orders is dealt with in 0.36 of
the Federal Court Rules.)

1. Each respondent's costs of each of the motions of which the notices specified 11 August 1988 as the date of hearing be paid by the applicants.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. VG255 of 1988
GENERAL DIVISION	1

BETWEEN: THE DAINTY PAUL

CORPORATION PTY. LTD. AND

PAUL DAINTY PRODUCTIONS

PTY. LTD.

Applicants

AND: THE NATIONAL TENNIS

- CENTRE TRUST AND THE VICTORIAN ARTS CENTRE TRUST OLYMPIC PARK MANAGEMENT

Respondents

CORAM :	Jenkinson J.
PLACE:	Melbourne
DATE :	16 August, 1988

REASONS FOR JUDGMENT

I am persuaded that on 19 July 1988 the respondents'

counsel gave their consents to the orders that day made on the

footing that in the proceeding causes of action under the Trade

Practices Act other than causes of action under sub-sections 47(8) and 47(9) would not be maintained. I am persuaded that the

applicants' counsel's conduct justified the belief that the respondents' consents were understood by him to have been given on that footing. I am also persuaded that the applicants' counsel had made clear to counsel for the respondents that the applicant might decide, after the return of their senior counsel from abroad, to decline to limit the claims in the proceeding in that

way. I am persuaded that counsel for all parties understood that,

if that decision were taken, all the parties would be free to seek ,

to persuade the Court to take a course different from the proposed course by reference to which the orders of 19 July 1988 were made. In those circumstances, nothing having been said about the incidence of the costs which would be incurred in submitting the questions conditionally resolved on 19 July 1988 to the Court for further consideration or about costs thrown away in consequence of a change of mind on the part of the applicants, it would in my

opinion have been appropriate to order that the applicants pay the

respondents' costs of 19 July 1988 and the costs of taking the steps necessary to bring the proceeding before the Court, such as the issue and service of the notices of motion which were in fact

filed.	Those are, I think, the costs which have been occasioned
or rendered abortive in	consequence of the applicants' taking, and

subsequently exercising, the privilege of further consideration of its position after 19 July 1988. However, the parties were able again on 11 August 1988 to reach agreement except as to costs and substantially the same result will be achieved by an order of the

kind which was	the subject of argument on 11 August 1988.
I certify that this and the

preceding page is a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson.

Dated: 16 August, 1988