Consideration
5 Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) the Court has a wide discretion in respect of costs orders. The parties in this case do not dispute the general proposition that costs follow the event, and indeed this is the approach that Trio Bros urges on the Court. Trio Bros also seeks an order that its costs be paid on an indemnity basis after 12 March 2015.
6 I have carefully considered the respondents' submissions that costs should be in the proceedings. This approach has a superficial attraction, however I am satisfied that costs should follow the event as submitted by Trio Bros. I am not, however, satisfied that costs should be paid on an indemnity basis after 12 March 2015.
7 I have formed these views for the following reasons.
8 First, while the respondents faced a high hurdle in respect of matters to be established by them in support of their interlocutory application, the fact is that they were unsuccessful. In this context, difficulties faced by a litigant filing an interlocutory application in pursuing that application are properly matters for the litigant to consider in deciding whether or not to pursue it, rather than relevant considerations for the Court in determining where costs should lie when the interlocutory application is ultimately unsuccessful.
9 Second, while the factual substrata to the substantive proceedings in this Court and the Victorian application are the same, it was clear that the two proceedings involved different causes of action requiring different evidence and findings by the Court on different issues. While I do not consider that, as a result, it could be said that the respondents' interlocutory application was inevitably doomed to fail, nonetheless these were proper factors for the respondents to take into account in determining whether to proceed with their interlocutory claims.
10 Third, in circumstances where the respondents had already commenced the Victorian application and indicated that their venue of preference was the Federal Court or the Federal Circuit Court rather than the State courts, it is surprising to me that, rather than seek summary dismissal of the substantive proceedings, the respondents did not formally seek what I consider to be the obvious order of transferral of the substantive proceedings to the Victorian Registry. Certainly at the hearing before me the respondents indicated that they would view the combining of the two separate proceedings in one proceeding before the Federal Court as a positive development (transcript p 62 ll 18-21).
11 Fourth, I agree with the submission of Trio Bros that costs in respect of the interlocutory application is a discrete matter, which can be reasonably and properly resolved at this point. From a case management perspective, I consider it appropriate that I deal with the question of costs rather than referring it for determination to the new trial Judge.
12 However, I do not consider that, as at 12 March 2015, it was unreasonable for the respondents to reject the settlement offer of Trio Bros in respect of the interlocutory application. While the interlocutory application was dismissed, in circumstances where there was a commonality in the factual substratum of both applications I am not satisfied that the interlocutory application had no prospect of success such that an order for indemnity costs is warranted. Certainly extensive submissions were made by both parties in respect of substantive factual issues at the interlocutory hearing, which itself required a Court day. Further, notwithstanding that Trio Bros is based in Brisbane, as is clear from my judgment I was satisfied that the proceedings ought properly be transferred to Victoria.
13 The proper order is that the respondents pay the applicant's costs of and incidental to the interlocutory application filed on 18 November 2014 on a party-party basis.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.