Independent Fuels Australia Pty Ltd v Jamieson

5. On 21 December 2001 a summons was issued on behalf of the plaintiff seeking an interlocutory restraining order against the defendant. On that day, on the plaintiff giving to the court an undertaking as to damages, an interim ex parte order was made in favour of the plaintiff against the defendant of the nature sought by the summons. It was further ordered that costs be reserved.

8. The order made on 21 December 2001 ran until 15 January 2002. On 15 January 2002, on the further return of the summons of the plaintiff, further injunctive orders were made by the court in favour of the plaintiff of the nature of those previously made, which orders ran until 30 January 2002. It is to be noted that on 15 January 2002 each party appeared before the Court by counsel. On 30 January 2002 injunctive orders were made in favour of the plaintiff against the defendant, which ran until 4.15 p.m. on 31 January 2002. The further hearing of the summons was adjourned until 31 January 2002. It was ordered that costs be reserved. On 1 February 2002 further injunctive orders were made in favour of the plaintiff against the defendant, effective until 4.15 p.m. on 6 February 2002. The further hearing of the summons was adjourned to 6 February 2002. It was ordered that costs be reserved. On 6 February 2002 the contested hearing of the plaintiff's summons filed on 21 December 2001 was heard and I reserved my decision.

11. On 7 February 2002 counsel for the defendant made application for leave to reopen the defendant's case in order to file and place before the court two further affidavits, one sworn by the defendant and the other by a person who had previously sworn an affidavit in the proceedings which had been filed and relied on by the defendant on the hearing on 6 February 2002. Each affidavit had been sworn after the conclusion of the hearing on 6 February 2002. On 7 February 2002 it was ordered that the defendant's application be adjourned until 2.15 on 8 February 2002. Costs of the day of 7 February 2002 were reserved. On 8 February 2002 leave was granted to the defendant to reopen his case by filing and relying on the two further affidavits. Directions and orders were made providing for further written submissions to be filed by each party. The costs of 8 February 2002 were reserved.

14. On 13 February 2002, as I have said, I delivered my judgment in the proceedings which were commenced by the plaintiff's summons filed on 21 December 2001. I ordered that the plaintiff's summons be dismissed. I further ordered that the question of costs be adjourned sine die. Without the necessity of making formal orders, I indicated to counsel, for each of the parties, that I required them to furnish written submissions relevant to the question of costs of the plaintiff's summons filed on 21 December 2001 and ordered to be dismissed on 13 February 2002. I have now received detailed written submissions as to the question of costs from counsel for the plaintiff and counsel for the defendant.

17. Pursuant to s.24(1) of the Supreme Court Act 1986 the Court has a wide discretion as to costs of and incidental to all matters in the Court. That discretion must be exercised judicially. Rule 63.20 of Chapter 1 of the Rules of Court provides:

"Each party shall bear his own costs of interlocutory or other application in a proceeding, whether made on or without notice, unless the Court otherwise orders."

21. It was submitted on behalf of the defendant that the order that should be made as to costs is that the defendant's costs of the proceedings as commenced by the plaintiff's summons filed on 21 December 2001 be costs in the cause. In support of that submission it was submitted on behalf of the defendant that it was not disputed by the defendant that he was bound contractually to the plaintiff pursuant to the confidentiality agreement and in such circumstances and having regard to the facts in this case as determined to this point, on the plaintiff being unsuccessful on its summons it should not have its costs. It was further submitted that the costs of the proceedings as commenced by the plaintiff's summons should not be reserved but rather the order as now sought should be made.

24. As to the costs of the day on 7 February and 8 February 2002, counsel for the defendant submitted in substance that no distinction should be made as to the costs relevant to those days, as the matters dealt with in the further affidavits relied on by the defendant, as pursued by leave, dealt with a subject which was raised in submissions by counsel for the plaintiff during the hearing and could not have been reasonably anticipated by the defendant before that time and it was therefore reasonable to obtain instructions after the hearing had been concluded. At the time of making application for leave to reopen the defendant's case on 8 February 2002, counsel for the defendant did not deny that the defendant was in court at all times during the hearing and was available to give instructions during the course of the hearing of the summons. Further it has been submitted on behalf of the defendant that that which was in substance adjournments of the proceedings by the summons on 15 January, 30 January and 31 January 2002 should not be treated separately but regarded as an incident of such proceedings where it was necessary for the party to obtain legal advice and to file answering affidavits.

27. On behalf of the plaintiff it was submitted that the starting point was that by reason of R.63.02 there should be no order as to costs. Further it was submitted, however, that the plaintiff should have its costs of 21 December 2001, as at that time the balance of convenience was in favour of making the order which was different from the circumstances as found by the Court to be existing on 13 February 2002 when judgment was delivered. It was further submitted that the orders made on 21 December 2001 prevented further breaches of the confidentiality agreement by the defendant. Again it was submitted that had an undertaking been given by the defendant, not to breach the confidentiality agreement, the continuation of the proceedings would not have been necessary. Further it was submitted on behalf of the plaintiff that it would be premature to give the defendant his costs as at trial the plaintiff's position and actions taken to obtain interlocutory relief may be vindicated and at this stage it should be ordered that the costs of the proceedings be reserved or that they be costs in the cause. It was further submitted on behalf of the plaintiff that the costs of the adjournments of the proceedings on 15 January, 30 January and 31 January should be borne by the defendant and that the costs of the plaintiff on the applications of the defendant to reopen his case should be borne by the defendant.

30. The starting point, in my view, as to the consideration of costs in these proceedings is to have regard to the provisions of R.63.02. However, it is to be noted that, by the very terms of the rule, it is subject to any order made by the Court. The plaintiff instituted the proceedings, but on the hearing and determination of it, the plaintiff failed and the summons was dismissed. On 21 December 2001 the order was made by way of an interim ex parte order. The fact that the plaintiff was successful on that occasion cannot dictate the outcome of costs orders relevant to the later outcome of the proceedings. The fact that the defendant offered no undertaking as referred to, in my view, is not to the point. He was aware of the terms of the contract and did not dispute that it bound him. In the event of the outcome of the proceedings, there was no need or reasonable requirement, at any time, for the defendant to give an undertaking not to breach the agreement which he did not dispute bound him.

33. As to the costs of the adjournments, having regard to the matters before the Court, the nature of the adjournments obtained and the reasons are of such a type that one may expect in a proceeding such as this, when an interim ex parte order is made on 21 December of a year and when proceedings are adjourned until a time in January. Had the judge who granted such adjournments considered one or other party should have borne the costs of the adjournment he would have made an order for costs specific to that adjournment. He did not do so. Costs incurred by the respective parties on these days should not be separated from the costs of this proceeding but be treated as part of the whole.

36. The conclusion that I have reached is that in this proceeding as commenced by the plaintiff's summons filed on 21 December 2001, in which the plaintiff failed, when the proceeding was heard and determined, the plaintiff should not have its costs against the defendant, nor should the costs of the proceeding be reserved. It is appropriate to deal with them now. In my view it should be ordered that the costs of the successful defendant be costs in the cause and that the plaintiff should bear its own costs of the proceedings. However, I am satisfied that the defendant should not have its costs of 7 February and 8 February 2002 when application was made on behalf of the defendant to reopen his case. In the event, each party should bear its own costs of those days.

39. Accordingly it is ordered that the defendant's costs of the proceedings commenced by the plaintiff's summons filed on 21 December 2001, other than his costs of 7 February and 8 February 2002, be costs in the cause.