Mitsubishi Motors Australia Ltd v Ripponlea Motors Pty Ltd

REASONS FOR JUDGMENT 1 On 11 June 2013 Mitsubishi Motors Australia Ltd ("Mitsubishi Motors") issued a Fast Track Application in this Court against Ripponlea Motors Pty Ltd ("Ripponlea Motors") and Gregory Thomas Wallace. Mr Wallace is one of two directors of Ripponlea Motors and he is the company secretary. 2 The Fast Track Application contained various claims for interlocutory relief. Those claims for interlocutory relief came on for hearing before me on 18 June 2013 and at the conclusion of the hearing I made various orders relating to the removal of signage and advertising material at a site at 355 - 359 Nepean Highway, Parkdale, Victoria, and the deregistration or transfer to Mitsubishi Motors of a specified domain name and any other domain registered by Ripponlea Motors that contained certain words or marks. Ripponlea Motors was to do the various acts referred to in the interlocutory orders by 4 pm on Tuesday 2 July 2013. I should mention that I allowed Mr Wallace to represent Ripponlea Motors having regard to the circumstances of urgency. 3 When the proceeding came before the Court on 3 July 2013, counsel for Mitsubishi Motors told me that, with the exception of the domain name, it appeared that the interlocutory orders had been complied with. It was necessary for his client to check whether the order in relation to the domain name had been complied with. In the circumstances, counsel for Mitsubishi Motors applied for the costs of the application for interlocutory relief and further, for orders that those costs be assessed on an indemnity basis, and payable forthwith. 4 Mr Wallace on his own behalf and on behalf of Ripponlea Motors opposed the making of those orders. 5 I think that there should be an order for costs against Ripponlea Motors and Mr Wallace. There was in effect no defence to the claims for interlocutory relief and the orders which were made. Although no orders were made against Mr Wallace personally, the correspondence clearly reveals his involvement in the company's actions. 6 I think that the costs should be assessed on an indemnity basis. I have read the correspondence which passed between Mitsubishi Motors and Ripponlea Motors before the proceeding was commenced and the claims for interlocutory relief made. It is annexure "GJB-15" to the affidavit of Gregory John Blanch affirmed on 11 June 2013. It seems clear that there was an element of delaying tactics and obfuscation in the respondents' response to the claims of Mitsubishi Motors and I conclude that an earlier acceptance of what turned out to be the inevitable would have avoided the need for an interlocutory hearing. In these circumstances, the costs should be assessed and payable on an indemnity basis (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1988) 81 ALR 397; Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225). 7 Prima facie, the costs on an interlocutory application are not to be taxed until the proceeding is finalised (r 40.13 of the Federal Court Rules 2011 (Cth)). This rule avoids multiple taxations and it means that a party is not deprived of a set-off that he or she might otherwise be entitled to. In practical terms, it means that one party is not able to exhaust the financial resources of the other before the merits of the case are determined. There are circumstances in which it is appropriate to dispense with the rule. There is a thorough treatment of the authorities by Weinberg J in McKellar v Container Terminal Management Services Limited [1999] FCA 1639 (see also Life Airbag Company of Australia Pty Limited and Ors v Life Airbag Company (New Zealand) Limited and Ors (unreported 22 May 1998, Federal Court of Australia, Branson J); Rafferty and Others v Time 2000 West Pty Ltd (ACN 127 893 270) and Others (No 3) (2009) 257 ALR 503). 8 There is a good deal to be said in favour of the application of Mitsubishi Motors. The claims for interlocutory relief were separate from the claims for final relief and have now been brought to a conclusion. There was never any defence to them. On the other hand, the interlocutory claims were not long or complex and my best assessment, at this relatively early stage of the proceeding, is that the claims for final relief can be dealt with relatively quickly. In the circumstances, I am not satisfied that the case warrants a departure from rule 40.13. 9 The respondents must pay the applicant's costs of the applicant's claim for interlocutory relief and such costs are to be assessed on an indemnity basis. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.