1. Regard must be had to the fact that the discretion to vary or set aside such orders should be used only in exceptional circumstances.[81] The principle of finality of litigation requires courts to exercise great caution when considering whether exceptional circumstances exist warranting the variation of orders.[82] In this case the Costs Order was the usual order, and it was made as requested. There is nothing in the overall circumstances of this case which make the circumstances, or any of them, exceptional.

1. For the reasons set out above,[83] the respondents have not established any basis on which the Court would have been moved to exercise its discretion under r.16.05(2)(c) and (f). Therefore, the Court would have dismissed the application in any event.

1. In determining this issue the Court has had regard to Mr Gunasekera's Affidavit. Objection was taken at hearing to those parts of that affidavit which were hearsay, and therefore not admissible.[84] On that basis the Court disregarded paragraphs 32, 33, 35, 36, 45, 48, 51, 74 and 76(b) of Mr Gunasekera's Affidavit, and those paragraphs will be struck out as inadmissible.

1. The respondents have failed to establish that the Costs Order is an order of a type which could be set aside or varied under r.16.05(1), or (2)(c) or (f) of the FMC Rules. Further, even if it were an order of a type which could be set aside or varied, the Court would not, in all the circumstances of the case, have been prepared to exercise its discretion so as to set aside or vary the Costs Order. The Application by the respondents to set aside or vary the Costs Order must therefore be dismissed, and there will be an order accordingly.
2. The Court will hear the parties as to the costs of the respondents' Application.

I certify that the preceding 70Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !seventyseventy (70) paragraphs are a true copy of the reasons for judgment of Lucev FM

[1] Pierson's Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 2) [2010] FMCA 121 ("Pierson's Pro-Health (No. 2)").

[4] "Application". The Application, made by way of a letter which the Court agreed to treat as an application, is Annexure AG2 to Mr Gunasekera's Affidavit sworn 1 April 2010 ("Mr Gunasekera's Affidavit").

[12] Holtby v Hodgson (1889) 24 QBD 103 at 107 per Lord Esher MR.

[13] [2008] FMCA 544; (2008) 218 FLR 16 at 24-30 per Lucev FM; [2008] FMCA 544 at paras.27-53 per Lucev FM ("Skipworth (No. 2)").

[14] Skipworth (No. 2) FLR at 29-30 per Lucev FM; FMCA at para.50 per Lucev FM.

[15] Skipworth (No. 2) FLR at 30 per Lucev FM; FMCA at para.52 per Lucev FM.

[16] B. C. Cairns, Australian Civil Procedure (7th Edn) (Law Book Co: Pyrmont, 2007) page 403 ("Cairns").

[17] TAG Pacific Ltd v McSweeney [1992] FCA 168; (1992) 34 FCR 438 ("TAG Pacific"); White v Brunton [1984] QB 570.

[18] TAG Pacific; Camberwell City Council v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; [1994] 1 VR 163 at 173-175 per Marks and Gobbo JJ.

[19] GK Sandford Pty Ltd v Jansen [1992] FCA 236; (1992) 36 FCR 83 at 93-94 per Neaves, Beaumont and von Doussa JJ (upholding the making of an interim award of workers' compensation as interlocutory); Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 (where the Federal Court granted injunctions against infringement of copyright and ordered that if a claim for damages was to be pursued the matter was to be referred back to the trial judge for findings on the evidence as to damages, which the High Court held to be interlocutory); Metcalf v Permanent Building Society (In liq) (1993) 10 WAR 145 (decision on preliminary issue interlocutory).

[20] McDermott v Richmond Sales Pty Ltd [2006] FCA 248 at para.21 per Kenny J ("McDermott"), citing Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443 per Windeyer J. See also SZGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1785; (2005) 227 ALR 683 at 689-690 per Lindgren J; [2005] FCA 1785 at paras.32-34 per Lindgren J.

[22] Permanent Trustee Co. (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 201 per Brennan J ("Stocks & Holdings").

[23] [2003] FCA 77 ("Yandal Gold").

[24] Yandal Gold at para.22 per Merkel J.

[25] [2001] FCA 336 ("BHP Steel").

[26] BHP Steel at para.18 per Kiefel J.

[27] As to which, see paras.47(b) and 63-64 below.

[28] Mr Gunasekera's Affidavit, paras.20-22. The Court's website is at www.fmc.gov.au ("Court Website").

[29] Mr Gunasekera's Affidavit, para.23.

[30] Mr Gunasekera's Affidavit, para.24.

[32] www.fmc.gov.au/pubs/html/costs gfl.html.

[33] T. Lucev, The Federal Magistrates Court: Jurisdiction, Practice and Procedure and Cross-Vesting Applications (Western Australian Bar Association, Bar Readers' Course, 21 May 2008) ("WABA Paper"), available at www.fmc.gov.au/pubs/docs/cross-vesting.pdf.

[35] Although increasingly there appears to be a tendency to simply award costs under Schedule 1 of the FMC Rules.

[36] WABA Paper at paras.116-119. The previous two footnotes (fn.34-35) are footnotes from the WABA Paper.

[37] [2002] FMCA 43 ("Pratt (No. 2)").

[38] Pratt No. 2 at paras.5-6 per Driver FM.

[39] [2002] FMCA 90 ("Colan Products (No. 2)").

[40] Colan Products (No. 2) at para.3 per Raphael FM.

[41] [2004] FMCA 640 ("Hinchliffe (No. 2)").

[42] Hinchliffe (No. 2) at paras.10-12 per Driver FM.

[43] Zhang v Kanellos & Anor (No. 2) [2005] FMCA 418 at para.2 per Driver FM ("Zhang").

[45] [2006] FMCA 1122 ("Choundary").

[46] Choundary at para.18 per Mowbray FM.

[47] M. Castle and N. Armitage, Costs in the Federal Magistrates Court - Am I Claiming Too Much or Not Enough?, Ethos: Official Publication of the Law Society of the Australian Capital Territory (No. 202, March 2006) at pages 13-14.

[48] Hinchcliffe (No. 2) at para.10 per Driver FM.

[49] WABA Paper at para.117; Zhang at para.4 per Driver FM.

[50] Mr Gunasekera's Affidavit, para.2.

[51] Mr Gunasekera's Affidavit, para.12.

[52] Mr Gunasekera's Affidavit, paras.13-16.

[53] Mr Gunasekera's Affidavit, paras.18 and 19.

[54] Mr Gunasekera's Affidavit, paras.20 and 21; and see paras.32 and 37 above.

[55] Mr Gunasekera's Affidavit, paras.23 and 24; and see para.33 above.

[57] Mr Gunasekera's Affidavit, para.25.

[58] Mr Gunasekera's Affidavit, para.27.

[59] Mr Gunasekera's Affidavit, paras.37-40.

[60] Mr Gunasekera's Affidavit, para.28.

[61] Mr Gunasekera's Affidavit, para.29.

[65] Mr Gunasekera's Affidavit, Annexure AG2.

[66] Mr Gunasekera's Affidavit, Annexure AG2.

[67] Mr Gunasekera's Affidavit, paras.56-58 and Annexure AG7.

[68] Mr Gunasekera's Affidavit, paras.60-61 and Annexure AG8.

[69] Mr Gunasekera's Affidavit, paras.67-68 and Annexure AG11.

[70] Mr Gunasekera's Affidavit, paras.69-70 and Annexure AG12.

[71] Mr Gunasekera's Affidavit, paras.72-73 and Annexure AG14.

[72] Cairns, page 341; Choundary at para.18 per Mowbray FM.

[73] Hinchcliffe (No. 2) at paras.10-12 per Driver FM.

[74] Mr Gunasekera's Affidavit, Annexure AG2.

[79] Sullivan v Department of Transport (1978) 20 ALR 323 at 342 per Deane J.

[80] Contrast Skipworth (No. 2) where the Costs Order was made as part of the judgment without hearing from the parties.

[81] McDermott at para.25 per Kenny J, citing Dudzinski v Centrelink [2003] FCA 308 at para.11 per Spender J, in reference to the identical provision of O.35 r.7(2) in the Federal Court Rules. See also Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd trading as ANI Bradken Rail Transportation Group [2008] FCA 555.

[82] McDermott at para.25 per Kenny J, citing Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552 per von Doussa, Moore and Sackville JJ.

[84] Evidence Act 1995 (Cth), s.59.