Trade Practices Commission Service Station Association Ltd and ors

[1992] FCA 560

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JUDGMENT NO. .~.....wtsasssa -HI-

IN TEE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 616 of 1991

1

GENERAL DIVISION	)
B E T W E E N :

TRADE PRACTICES COMMISSION

Applicant

- and -

SERVICE STATION ASSOCIATION LIMITED

First Respondent

JOHN ALICK LANGLEY

Second Respondent

BRIAN ERNEST MARK

Third Respondent

JUDGE :	Heerey J
m:	3 August 1992
W:	Melbourne (heard in Sydney)

RULING ON COSTS

On 24 July 1992 I ordered that the costs including reserved costs.

which the respondents incurred in preparingto deal with a large	number of documents which the applicant withdrew from a proposed
tender and also a number of proposed witnesses who were not called by the applicant.
At a directions hearing on 14 February 1992 Lockhart J ordered by consent that not later than three weeks prior to the trial the applicant should provide a detailed putline of the evidence of each witness it intended to call and a bundle of the documents it intended to tender. On 25 and 26 May the applicant provided outlines of evidence of 11 witnesses and three volumes of documents it proposed to tender.
I am told the respondents' solicitors and counsel did a
substantial amount of preparation work in connection with the proofs of evidence and the other documents. Amongst other things, the respondents' solicitors on 10 June 1992 provided the applicant's solicitor with a list of objections to some of the documents.
At approximately 9.00 am on the morning of 15 June 1992, the first day of the hearing, counsel for the applicant informed
counsel for the respondents that the applicant was withdrawing approximately one half of the proposed tender of documents. On the second day of the hearing at approximately 12 noon, after the completion of the evidence of the third witness called by the applicant, counsel for the applicant indicated that he would not be calling the other witnesses in respect of whom proofs of evidence had been provided.
Due largely to this substantial reduction of the applicant's case, the hearing, which had originally been estimated for three weeks, took only three days of evidence on 15, 16 and 17 June; submissions on the following Monday 22 June and a very brief mention on 24 June.
The respondents contend, correctly, that s.43 of the Federal Court of Australia Act 1976 authorises the making of an order for costs on a solicitor/client basis where there are features which suggest the exercise of the discretion; see for example Thors v Weeks (1989) 92 ALR 131.
However in my opinion it would not be appropriate to exercise that discretion in the present case. In his written submissions, the solicitor for the applicant properly concedes that the respondents are "clearly entitled to their party and party costs of the trial and preparation, including preparation in respect of all the documents originally served on them and such preparation, occasioned by the service of witness statements, as
of the respondents that what happened was a tactic by the is allowed on taxation". But there is no suggestion on the part
applicant to distract the respondents' solicitors and counsel by having them prepare to meet material which the applicant never intended to rely on. On the contrary, I have no doubt that the decision to reduce very substantiallythe size of the applicant's case was a responsible decision taken by the applicant's solicitors and counsel in the interests of their client and for the more efficient and economical prosecution of their case. Such an approach to the conduct of litigation is to be commended, not penalised by the award of solicitor/client costs to an opponent. I think it would be very undesirable if there were any inhibition on legal advisers taking decisions of this sort.
Therefore I do not propose to vary the terms of the order for costs which was made on 24 July.

Counsel for the respondents then requested that certain of his clients' costs be allowed on a solicitor/client basis. Because another case was listed for hearing I granted leave for written submissions to be filed and served by both parties on this issue. This has now been done.

The costs for which a solicitor/client award are sought are costs

I certify that this and the

preceding (3) three pages are

a true copy of the reasons for

. judgment of his Honour Mr Justice Heerey.

Appearances

Counsel for the applicant:	Nr J D Heydon QC with Mr C P Comans
Solicitor for the applicant:	AustralianGovernment Solicitor
Counsel for the respondents:	M r B C Oslington QC with Mr C C
Hodgekiss
Solicitors for the respondents: Mallesons Stephen Jaques
Dates of hearing:	15, 16, 17, 22 and 24 June and
24 July