Singtel Optus Pty Limited v Vodafone Pty Limited

REASONS FOR JUDGMENT 1 In this matter I dismissed an application brought by the applicant for an interlocutory injunction: Singtel Optus Pty Limited v Vodafone Pty Limited [2010] FCA 1448. In my reasons for dismissing that application I expressed the tentative view that the costs of the interlocutory application should be the respondent's costs in the proceeding. I made directions for the filing of submissions in the event that either party sought a different result by 1 February 2011 with submissions in reply to be filed shortly thereafter. Both parties have filed submissions. 2 The respondent submitted that the applicant should be ordered to pay the respondent's costs of the interlocutory application. It submitted that this is the "usual order" that is made against an applicant whose application for an interlocutory injunction is refused. I was referred to various unreported decisions of the Supreme Court of New South Wales in support of that proposition: see, in particular, Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119 as per Campbell J at [56] and, in Court of Appeal, Westpoint Finance Pty Ltd v The Chocolate Factory Apartments Ltd [2002] NSWCA 287 per Young CJ in Eq at [67]. 3 There is no doubt that in this Court orders are frequently made requiring an unsuccessful applicant to pay the successful respondent's costs of an application for an interlocutory injunction. Even so, I do not think it is correct to characterise this as the usual order in this Court. The costs orders made in cases where an interlocutory application is refused are the product of a broad discretion and different orders are quite commonly made. The reasons for the refusal will usually be of some importance in determining what costs order is appropriate in a given case. 4 The applicant submitted that the "usual" position is reflected in O 62, r 29 of the Federal Court Rules. Under that rule, unless the Court otherwise orders, the costs of the successful party will be its costs in the proceeding. Again, I do not think it is correct to characterise that as the "usual" result. The rule establishes a default position for determining costs in the event that the Court does not otherwise order. It applies to a myriad of applications and other steps that are made or taken in a wide range of proceedings that can be brought in this Court where no other order is made. 5 The respondent's submissions assume that it was wholly successful in resisting the applicant's interlocutory application. But while the application was dismissed, that was only after the respondent provided to the Court an undertaking which was material to my decision to refuse the injunctive relief that was sought: see para [24] of my reasons. So I think it oversimplifies matters to approach costs on the basis that the respondent was wholly successful. 6 The applicant raised an argument in its submissions in reply that the costs of the interlocutory application should be the respondent's costs in the cause excluding costs associated with the print advertisements. The applicant's submission does not indicate what is to happen to the costs associated with the print advertisements but presumably it is intended that they be reserved. There are two things to say about the applicant's submission. 7 First, the respondent is correct in saying that the time for the applicant to propose such an order expired on 1 February 2011. It is not a point that it is open to the applicant to raise by way of reply under the term of my previous orders. 8 Secondly, and more importantly, I am not persuaded that it is appropriate to make a costs order on an issue by issue basis in this matter. The main focus of the interlocutory application heard by me was on the respondent's television commercials (as opposed to the print advertisements) and there is nothing in the applicant's submissions to persuade me that it is appropriate for the respondent to be deprived of any part of its costs of the interlocutory application if the proceeding commenced against it is ultimately dismissed. 9 In all the circumstances I think the result I proposed is most appropriate. That will be achieved by me making no order (leaving O 62, r 29 to apply) or by making an order that the costs of the interlocutory application be the respondent's costs in the proceeding. I think it is preferable that I make such an order. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.