Australian Chinese Newspaper Pty Ltd v Chinese Press Pty Ltd

REASONS FOR JUDGMENT (No 3) 1 I gave reasons for judgment on 1 June 2001 on the respondent's motion for summary dismissal of the proceeding (Australian Chinese Newspaper Pty Ltd v Chinese Press Pty Ltd (No 2) [2001] FCA 651). I dismissed that motion and will not repeat my reasons for doing so. 2 The question for determination now is that of the costs of the motion. The parties have made written submissions. The applicant submits that costs should follow the event, with the result that the respondent should be ordered to pay the applicant's costs of the motion. The respondent submits that costs should be reserved pending the final hearing and determination of the proceeding, referring to the fact that in par [14] of my reasons for judgment I noted that there may be further evidence before the Court on a final hearing relevant to the issues whether the respondent's masthead was deceptively similar to that of the applicant and whether it was misleading or deceptive. The respondent submits that a determination of the question of costs cannot properly be made until it is known whether such further evidence will be adduced and if so what it will be. 3 Whitlam J delivered reasons for decision on 17 January last for dismissing the applicant's motion for interlocutory relief. On 7 February his Honour directed the respondent to file and serve any notice of motion and affidavits in support on or before 27 February. No doubt the reference was to any notice of motion for summary dismissal. His Honour also gave other directions, including a direction that, in effect, the applicant was to file and serve any evidence in reply on or before 6 March. The proceeding was stood over by Whitlam J to 9 March 2001 for further directions. 4 The respondent filed its notice of motion for summary dismissal on 23 February 2001 and with it an affidavit of Vasilios Kalantzis of the same date in support. Accordingly, the respondent had filed its notice of motion and supporting affidavit within the time fixed by the directions. 5 When the proceeding was again before his Honour on 9 March, the applicant had not filed, as required by the directions of 7 February, any affidavit in reply. His Honour directed the applicant to file and serve any such affidavit on or before 28 March. 6 The critical affidavit of Chris Sai Cheong Ma, sworn 28 March 2001, was filed on 29 March 2001. I relied heavily on Mr Ma's affidavit in dismissing the respondent's motion for summary dismissal. The respondent was entitled to some time following service of Mr Ma's affidavit in which to reconsider its motion for summary dismissal. On the question of costs, I think it is fair to conclude that by mid April, the respondent had had sufficient time to decide not to prosecute its motion for summary dismissal. But down to that time, it seems to have acted reasonably in pursuing its motion. 7 There is a further matter to be mentioned. I noted earlier the possibility that there would be further evidence before the Court on a final hearing relevant to the two issues identified by me. On the hearing of the respondent's motion for summary dismissal on 4 May, senior counsel for the applicant said that, according to his instructions, some material in addition to Mr Ma's affidavit would be before the Court on the final hearing. 8 If it should eventuate that no further evidence is before the Court on the final hearing, that absence of evidence would be a factor relevant, or potentially relevant, to the exercise of the discretion on the issue of costs. But I do not think it requires a reservation of the question because, as I think is clear from my reasons for judgment of 1 June, I would have dismissed the motion for summary dismissal on the basis of Mr Ma's affidavit alone. 9 Having regard to the lateness of Mr Ma's affidavit and the reasonableness of the respondent's pursuit of its motion down to mid April, I think the appropriate order is that the respondent pay one half of the applicant's costs of the notice of motion. 10 Accordingly, the Court orders that the respondent pay one half of the applicant's costs of the respondent's motion for summary dismissal brought by notice of motion filed on 23 February 2001. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.