Smith and Ors v Marapikurrinya Pty Ltd and Ors (No.2)

[2010] FMCA 79

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH & ORS v MARAPIKURRINYA PTY LTD & ORS (No.2) [2010] FMCA 79

TRADE PRACTICES – Alleged misleading and deceptive conduct in relation to alleged representations in native title and aboriginal heritage matters.

COSTS – Application in a case – where respondents’ application for summary dismissal unsuccessful – where respondents’ application for transfer of proceedings to the Federal Court successful.

Federal Magistrates Court Rules 2001 (Cth), r.16.01

Smith & Ors v Marapikurrinya Pty Ltd & Ors [2010] FMCA 5

First Applicant: GENE SMITH

Second Applicant: MARY ATTWOOD

Third Applicant: GEORGE DANN

Fourth Applicant: SHIRLEY LOCKYER

Fifth Applicant: PATRICIA MASON

Sixth Applicant: ROBERT DANN

First Respondent: MARAPIKURRINYA PTY LTD

Second Respondent: DIANA ROBINSON

Third Respondent: KERRY ROBINSON

File Number: PEG 10 of 2009

Judgment of: Lucev FM

Hearing date: Written submissions

Date of Last Submission: 9 February 2010

Delivered at: Perth

Delivered on: 9 February 2010

REPRESENTATION

Counsel for the Applicant: Mr A. Rumsley

Solicitors for the Applicant: Alan Rumsley

Counsel for the Respondents: Mr P Sheiner

Solicitors for the Respondents: Gadens Lawyers

ORDERS

1. There be no order as to the costs of the application in a case.

2. Otherwise, the costs of the proceedings in PEG 10 of 2009 in the Federal Magistrates Court be as determined by the Federal Court in the transferred proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 10 of 2009

GENE SMITH

First Applicant

MARY ATTWOOD

Second Applicant

GEORGE DANN

Third Applicant

SHIRLEY LOCKYER

Fourth Applicant

PATRICIA MASON

Fifth Applicant

ROBERT DANN

Sixth Applicant

And

MARAPIKURRINYA PTY LTD

First Respondent

DIANA ROBINSON

Second Respondent

KERRY ROBINSON

Third Respondent

REASONS FOR JUDGMENT

Costs

1. The Court handed down its reasons for judgment in relation to an application in a case in this matter on 29 January 2010.[1] The orders made on the same date were as follows:

   1. The respondents’ application for summary dismissal of the proceedings be dismissed.

   2. The respondents’ application for transfer of the proceedings be upheld.

   3. The proceedings in matter number PEG 10 of 2009 be transferred to the Federal Court of Australia following determination of costs in this matter, with the costs reserved for further determination by the Court following receipt of any written submissions:

   a) from the respondents by 5 February 2010; and

   b) from the applicants by 12 February 2010,

   [1] Smith & Ors v Marapikurrinya Pty Ltd & Ors [2010] FMCA 5 (“Smith (No.1)”).

   with any order as to costs to issue from Chambers.

2. At the judgment hearing the Court indicated to the parties that it was preliminarily inclined to make no order as to costs in relation to the application in a case because the respondents were successful on the application for transfer but not on the summary dismissal application.

3. Pursuant to Order 3(a) of the Orders of 29 January 2010, Counsel for the respondents submitted the following:

   …there should be no order as to the costs of the [transfer] application for the reasons indicated by His Honour when giving judgment, namely the respondent/applicant [on the motion] was successful on the transfer but not the summary dismissal application. Alternatively, the costs of the summary judgment application should be reserved to the hearing of the substantive application.

4. Pursuant to Order 3(b) of the Orders of 29 January 2010, Counsel for the applicants submitted the following:

   The applicants support the costs orders proposed by His Honour on 29 January 2010, for the reasons raised on that occasion.

Consideration and orders

1. The Court concludes, consistent with and for the reasons expressed at the judgment hearing and in the submissions of the parties, that there be no order made as to the costs of the application in a case. Otherwise, costs in this Court should be determined by the Federal Court in the transferred proceedings.

2. The Court publishes these reasons for judgment from Chambers, pursuant to r.16.01 of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Dinon

Date:  9 February 2010