REASONS FOR JUDGMENT
1 On 30 July 1999 an order was made in this matter that the respondents pay the applicants the sum of $13,005. The applicants and respondents were invited to file submissions in respect of any order to be made in relation to the costs of the proceeding.
2 The applicants seeks an order that the respondents pay the applicants costs without the reduction provided in O 62 r 36A of the Federal Court Rules. The first respondent submits that the applicants recovered only a "nominal" part of its claim and should recover only a minor award of costs. The second and third respondents submit that the applicants' costs be limited to the scale applied in the Local Court of Western Australia.
3 No submissions were made by the respondents as to costs of the cross-claims each brought against the other.
4 The Court has a discretion to award costs as it thinks appropriate, such a discretion to be exercised judicially. (See: Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 67 FCR 416; Hughes v Western Australia Cricket Association Inc (1986) ATPR 40,748; ACCC v Nationwide News Pty Ltd (1996) ATPR 41,519.)
5 Order 62 rr 36A(1) and (2) of the Federal Court Rules provide as follows:
"36A(1) Where a party is awarded judgment for less than $100,000 on a claim (not including a cross-claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders.
36A(2) If the Court or a Judge is of the opinion that a proceeding (including a cross-claim for a money sum or damages) brought in this Court could more suitably have been brought in another court or in a tribunal and so declares, then any costs to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order."
6 Rule 36A(1) will apply in this case unless an order is made to the contrary.
7 With respect to r 36A(2), the proceeding brought in this Court may have been brought in the District Court pursuant to the jurisdiction conferred on that Court by s 86(2) of the Trade Practices Act 1974 (Cth) ("the Act"). Under s 77 of the Fair Trading Act 1987 (WA) the District Court has power to grant similar remedies to those sought in this matter under s 87 of the Act. Under s 75 of the Act, Pt V of the Act (ss 51AF - 75A) does not exclude, or limit, the concurrent operation of any law of a State. The Fair Trading Act 1987 (WA) is a law which has concurrent operation. Therefore, subject to the District Court being able to grant an order for rescission sought by the applicants in equity, the matter may have been transferred to the District Court under s 86A(1) of the Act if this Court were satisfied that it was in the interests of justice that the matter be determined in the District Court. Section 55 of the District Court of Western Australia Act 1969 (WA) states that the District Court has power to make orders in equity and that power would include an order for rescission. (See: Hondros & Tholet v Chesson [1981] WAR 146.)
8 Either the applicants or the respondents could have applied to have the matter transferred to the District Court. Neither did so. The applicants sought an order under s 87 of the Act for the reconveyance of the service station to the second and third respondents and repayment to the applicants of the purchase price and any consequential losses or outgoings. Alternatively, the applicants sought an order that the respondents pay to the applicants the loss they had suffered by purchasing the service station.
9 At all times the claim for relief under s 87 of the Act was a live issue. The applicants did not succeed in obtaining such an order but did establish that the Court was able to exercise a discretion to make such an order if it considered that it was appropriate to do so in all the circumstances.
10 The principles on which orders are to be made under s 87 are still being developed in this Court. (See: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546; Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 286 - 288.) Accordingly, where a claim for relief under s 87 is a substantial part of a proceeding brought under the Act, it is likely that in many of those cases this Court will be the appropriate Court for that proceeding.
11 On the facts of this case, I am unable to form the opinion that the proceeding could "more suitably have been brought" in the District Court. Although the applicants did not obtain an order under s 87 of the Act, they did establish a contravention of the Act in respect of which such an order could have been made. If follows that r 36A(2) will not apply.
12 If it is accepted that the bringing of the proceeding in this Court was not inappropriate, having regard to all the circumstances, it is likely to be appropriate that an order be made under r 36A(1) that there be no reduction in the costs and disbursements ordered to be paid in the proceeding. (See: Fasold v Roberts (1997) 70 FCR 489.) If the respondents wished to protect themselves against such a costs order, they could have made an appropriate offer of compromise or payment into Court. They chose to do neither.
13 The applicants established, in all substantive respects, that they were entitled to relief for loss suffered by reason of misleading or deceptive conduct of the respondents in trade or commerce and it is of no consequence that particular conduct of the respondents was not found to have been part of the conduct that contravened the Act.
14 The second and third respondents further submit that the applicants should be "deprived of the costs of adducing expert evidence". It was submitted that the expert evidence adduced by the applicants as to the value of the service station was rejected.
15 As stated in the reasons delivered on 30 July 1999, the expert evidence relied on by the first respondent was preferred to that of the applicants but as is made obvious by the conclusion that the applicants suffered loss greater than that opined in the evidence of the first respondent's expert, the evidence adduced by the applicants has been accepted to that extent.
16 The applicants seek an order that the respondents pay the cost of a copy of the transcript. That is a matter for the taxing officer to consider when he/she determines whether that outgoing qualifies as a disbursement to be included in the taxed costs.