McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd

REASONS FOR JUDGMENT (EX TEMPORE) 1 This is an application by the respondents in these proceedings for an order that costs which had previously been ordered to be paid be taxed and payable forthwith. The costs in question relate to the final disposition of the question of liability and certain relief, including injunctive relief. This order is only necessary because there is to be a further hearing on damages. In my view, an order of the kind envisaged should follow as a matter of course where the substance of the matter has been determined as it has in this case. 2 Two matters are put against that result. The first is that there is an appeal on foot which may be heard in November of this year and it is submitted that the applicant has not shown that it could repay any costs which it receives in the meantime if the appeal is successful. That is really an indirect application for a stay pending appeal. There is no occasion, in my view, to take the ordinary fruits of victory away from a successful party but it seems to me that, under all the circumstances, if I make the order sought it should be conditional upon the applicant satisfying either the respondents or, in default, the Registrar, that the applicant has the capacity to repay. If necessary, I have in mind the provision of a bond or some such thing. That should be done, of course, when the amount is known. 3 The other basis put forward is the effect of O 62, r 36A of the Federal Court Rules. It is submitted that, because there is an outstanding assessment of damages, those damages may well be less than $100,000 and that the effect of O 62, r 36A would then come into play. I have been referred to several authorities. The one which most directly relates to the matter is Australasian Performing Right Association Ltd v Pashalides [2000] FCA 1815, a decision of Moore J, in which his Honour appears to hold that the rule in question applies even where relief such as an injunction is granted. 4 This is, in my view, a controversial matter. My initial impression would be contrary to the opinion of his Honour, but I do not think it is necessary to come to a final view about that because, if the rule were applicable, I would order that it should not apply in the present circumstances. First of all, the substantive relief sought has been granted and damages, whilst no doubt not unimportant, is only one aspect of a case such as the present and not, I suggest, the most important aspect. Secondly, the matter was both prepared and presented in a perfectly conventional manner with no waste of costs as far as I could see. In my view, the existence of a damages claim did not materially affect the evidence which was required to be tendered on this hearing. I therefore take the view that, in substance, the order sought should be granted but should be conditional as I have indicated. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.