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Federal Court Rules 1979 (Cth) (repealed) O 27 r 4A, O 27 r 11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…
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- Case
- [2016] FCA 1275
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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