Titan Enterprises (Qld) Pty Ltd v Cross - [2016] FCA 1275

FEDERAL COURT OF AUSTRALIA
Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1275

File number: QUD 411 of 2016

Judge: LOGAN J

Date of judgment: 31 October 2016

Catchwords: PRACTICE AND PROCEDURE – Costs – subpoenas – production of documents by non-party – privilege asserted – privilege claim not made out on facts – whether entitled to expenses – whether expenses include legal costs – whether costs should follow the event – Federal Court Rules 2011 (Cth) r 24.22

Legislation:
Federal Court of Australia Act 1976 (Cth) s 43

Trade Marks Act 1995 (Cth) s 229

Senior Courts Act 1981 (UK) s 51

Federal Court Rules 1979 (Cth) (repealed) O 27 r 4A, O 27 r 11

Federal Court Rules 2011 (Cth) r 24.22

Civil Procedures Rules 1998 (Eng & W) r 34

Cases cited:
Akiba v Queensland (2010) 184 FCR 406

Bank of New South Wales v Withers (1981) 35 ALR 21

Cachia v Hanes (1994) 179 CLR 403

Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647

Dormeuil Trade Mark [1983] RPC 131

Fuelxpress Ltd v M Ericsson Pty Ltd (1987) 75 ALR 284

Hadid v Lenfest Communications Inc (1996) 65 FCR 350

Individual Homes Ltd v Macbream Investments Ltd, (2002) 99(46) L.S.G. 32; The Times, 14 November 2002

Packer v Deputy Commissioner of Taxation (Qld) [ 1985 ] 1 Qd R 275

Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1241

Tyne v UBS AG (No 2) [2014] FCA 1228

Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372

Date of hearing: 19 October 2016

Registry: Queensland

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Trade Marks

Category: Catchwords

Number of paragraphs: 20

Counsel for the Applicants: Mr B Gardiner

Solicitor for the Applicants: Kingwood Mallesons

Counsel for the Respondents: The Respondents did not appear

Counsel for the Proper Officer, Davies Collison Cave: Mr PK O’Higgins

Solicitor for the Proper Officer, Davies Collison Cave: Minter Ellison

ORDERS

QUD 411 of 2016

BETWEEN:
TITAN ENTERPRISES (QLD) PTY LTD

First Applicant

RIGEL CONSTRUCTIONS PTY LTD

Second Applicant

RIGEL ERECTORS PTY LTD

Third Applicant

AND:
DALE CROSS

First Respondent

ADAM CLIFFORD HARMON

Second Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

31 OCTOBER 2016

THE COURT DECLARES THAT:
1.The amount required, pursuant to the Court’s order made on 31 August 2016, to compensate Davies Collinson Cave in respect of that firm’s reasonable costs and expenses incurred in complying with the Subpoena does not include the legal costs of and incidental to the application in respect of privilege heard on 17 October 2016 and determined on 19 October 2016 (privilege application) but does include the reasonable legal costs as between solicitor and client of and incidental to the hearing on 19 October 2016 and the determination this day of costs in respect of the hearing and determination of the privilege application.

THE COURT ORDERS THAT:
1.Save as declared, there be no order as to costs in respect of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCA 1275
Decision Date: 31 October 2016

CaseChat Overview and Summary

In the case of Titan Enterprises (Qld) Pty Ltd v Cross, the dispute centred on the issue of costs related to the production of documents subpoenaed from a non-party. The case was heard in the Federal Court of Australia, with the primary focus on whether the plaintiff was entitled to expenses for producing documents, including whether these expenses could encompass legal costs, and if such costs should follow the event based on the Federal Court Rules 2011. The non-party had asserted a claim of privilege over the documents, which was ultimately rejected by the court on the facts presented.

The court was required to determine whether the non-party was indeed entitled to expenses in relation to the production of the subpoenaed documents, and if these expenses could include legal costs. Additionally, the court had to decide whether the costs incurred should follow the event as per the Federal Court Rules 2011, specifically Rule 24.22. The central legal issue revolved around the interpretation and application of the privilege claim and its impact on the entitlement to expenses and costs.

The court found that the non-party's privilege claim was not substantiated on the facts presented. Consequently, the plaintiff was entitled to expenses in relation to the production of the documents. However, the court held that these expenses did not include legal costs. Furthermore, the court determined that the costs should not follow the event, as per the Federal Court Rules 2011. The ruling left the issue of costs to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.

The final orders of the court declared that, apart from the specified ruling, there be no order as to costs in respect of the hearing and determination of the privilege application. The court's decision clarified the scope of expenses a party may claim when producing documents in response to a subpoena, the exclusion of legal costs from such claims, and the application of costs rules under the Federal Court Rules 2011.

Orders

Orders of the court

1. Save as declared, there be no order as to costs in respect of the hearing and determination of the privilege application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 411 of 2016
Judge:	LOGAN J
Date of judgment:	31 October 2016
Catchwords:	PRACTICE AND PROCEDURE – Costs – subpoenas – production of documents by non-party – privilege asserted – privilege claim not made out on facts – whether entitled to expenses – whether expenses include legal costs – whether costs should follow the event – Federal Court Rules 2011 (Cth) r 24.22
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43 Trade Marks Act 1995 (Cth) s 229 Senior Courts Act 1981 (UK) s 51 Federal Court Rules 1979 (Cth) (repealed) O 27 r 4A, O 27 r 11 Federal Court Rules 2011 (Cth) r 24.22 Civil Procedures Rules 1998 (Eng & W) r 34
Cases cited:	Akiba v Queensland (2010) 184 FCR 406 Bank of New South Wales v Withers (1981) 35 ALR 21 Cachia v Hanes (1994) 179 CLR 403 Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 Dormeuil Trade Mark [1983] RPC 131 Fuelxpress Ltd v M Ericsson Pty Ltd (1987) 75 ALR 284 Hadid v Lenfest Communications Inc (1996) 65 FCR 350 Individual Homes Ltd v Macbream Investments Ltd, (2002) 99(46) L.S.G. 32; The Times, 14 November 2002 Packer v Deputy Commissioner of Taxation (Qld) [ 1985 ] 1 Qd R 275 Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1241 Tyne v UBS AG (No 2) [2014] FCA 1228 Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372
Date of hearing:	19 October 2016
Registry:	Queensland
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Trade Marks
Category:	Catchwords
Number of paragraphs:	20
Counsel for the Applicants:	Mr B Gardiner
Solicitor for the Applicants:	Kingwood Mallesons
Counsel for the Respondents:	The Respondents did not appear
Counsel for the Proper Officer, Davies Collison Cave:	Mr PK O’Higgins
Solicitor for the Proper Officer, Davies Collison Cave:	Minter Ellison