Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

[2000] FCA 1843

FEDERAL COURT OF AUSTRALIA

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] FCA 1843

TRUTH ABOUT MOTORWAYS PTY LIMITED v MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED

NG 833 OF 1997

HELY J
5 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 833 OF 1997

BETWEEN:	TRUTH ABOUT MOTORWAYS PTY LIMITED APPLICANT
AND:	MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	5 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The costs ordered to be paid on 16 August 2000 be taxed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 833 OF 1997

BETWEEN:	TRUTH ABOUT MOTORWAYS PTY LIMITED APPLICANT
AND:	MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED RESPONDENT

JUDGE:	HELY J
DATE:	5 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 16 August 2000 I ordered the provision of security for costs of these proceedings to be established by 4 November 2000.  The security was not established in accordance with that order and the respondent now moves for the dismissal of the proceedings.  Mr Francey, counsel for the applicant, opposes that motion being dealt with today and I have agreed to adjourn the hearing of that motion until 19 February 2001.  In those circumstances, Mr Castle, counsel for the respondent, seeks an order under Order 62 rule 3 permitting the costs which I ordered the applicant to pay on 16 August 2000 to be taxed forthwith.  One of the reasons that he makes that application is that, apparently, there is a taxation in the High Court pending over the costs of the High Court proceedings.

2. It is implicit in Mr Castle's submissions that he would seek to set off the costs of the Federal Court proceedings against the costs of the High Court proceedings, an attempt which Mr Francey asserts would be unsuccessful.  I do not think that I am concerned at this stage of the proceedings, with any questions of set off.  The only issue before me is whether it is appropriate that an order under Order 62 rule 3 be made so as to entitle the respondent to tax the costs which I have ordered the applicant to pay.  It seems to me that the fact that these proceedings have been stayed because the applicant has not lodged security in terms of my earlier order, provides a sufficient justification for the making of an order under Order 62 rule 3, and I propose to do so.

3. I therefore order that the costs which I ordered to be paid on 16 August 2000 may be taxed, notwithstanding the fact that these proceedings have not been concluded.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            14 December 2000

Counsel for the Applicant:	Mr N Francey
Solicitor for the Applicant:	Maurice May & Co
Counsel for the Respondent:	Mr T Castle
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	5 December 2000
Date of Judgment:	5 December 2000