Howden Australia Pty Ltd v Minetek Investments Pty Ltd

1. The costs of the interlocutory application be the respondents' costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 On 21 June 2019, I dismissed the applicants' application for interlocutory relief: Howden Australia Pty Ltd v Minetek Pty Ltd [2019] FCA 981. The issue of costs of the application must now be decided. 2 The respondents sought the usual order for costs in their favour on the basis that they had succeeded and that, although they had applied for an adjournment during the hearing to adduce further evidence on the balance of convenience, that did not add to the overall length of the hearing given that the respondents' submissions about the prima facie case had not been completed by the end of the first hearing day. The applicants sought orders that the costs of the interlocutory application be costs in the cause or be the respondents' costs in the cause, subject to the respondents paying the applicants' costs of the adjournment of the hearing on 7 June 2019 and the hearing on 17 June 2019. 3 I have decided that the costs order that should be made is that the costs of the interlocutory application should be the respondents' costs in the cause. 4 Although counsel for the respondents had estimated that his submissions would take 30 minutes, the fact is that his submissions on the prima facie case, which were useful and helpful, were not able to be completed during the allotted day for the hearing. To the extent it might be suggested in the applicants' submissions, I do not accept that this resulted from a deliberate forensic decision by the respondents to give lengthier submissions than planned once the adjournment application had been granted. The time for submissions is often underestimated by counsel, even to a substantial extent. As a result, the adjournment application did not increase the overall length of the hearing. For this reason, the applicants are not entitled to a costs order in their favour. 5 I accept, however, that given that the dispute between the parties concerns the respondents using or not using the applicants' confidential information, which is an issue that can only be determined at the final hearing, the most appropriate order is that the costs of the interlocutory application should be the respondents' costs in the cause. If the respondents ultimately succeed on the ground that they have not used the applicants' confidential information then the respondents ought to recover the costs of the interlocutory application. If the respondents ultimately fail on that ground because it is proved they have used the applicants' confidential information then neither the respondents nor the applicants should obtain an order for costs in their favour in respect of the interlocutory application. This is because, in the interlocutory application, the applicants failed to prove a prima facie case (and thus should not get an order in their favour) and the respondents would have succeeded in the interlocutory application on a ground upon which they had ultimately failed (and thus should not get an order in their favour). As the applicants put it, an order now that the respondents should have their costs of the interlocutory application may involve an injustice if, in the final result, the respondents are found to have used the applicants' confidential information. 6 An order will be made accordingly. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.