Re Collier Constructions Pty Ltd v Foskett Pty Limited [1992] FCA 19; (1992) 33 FCR 591 (3 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: COLLIER CONSTRUCTIONS PTY LTD
And: FOSKETT PTY LIMITED
No. WA G91 of 1990
FED No. 32
Costs
[1992] FCA 19; (1992) 33 FCR 591

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Costs - trial as to liability only - declaratory relief - whether judgment for less than $50,000 on money claim - whether O.62 sub-r.36A(1) applies - whether as a matter of discretion the rule ought to apply - applicability of O.62 sub-r.36A(2).

Trade Practices Act 1974 s.52

Federal Court Rules O.62 sub-r.36A(1) and (2)

HEARING

PERTH
3:2:1992

Counsel for the Applicant: Mr M.W. Odes

Solicitors for the Applicant: Parker and Parker

Counsel for the Respondent: Mr D. O'Dea

Solicitors for the Respondent: Bennett and Co.

ORDER

Order 62 sub-rule 36A(1) does not apply to the order for costs made by Gummow J. on 15 October 1990.

The respondent to pay the applicant's costs of today's motion in any event.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is a motion in proceedings which were commenced on 9 August 1990 and in which the applicant sought a variety of declaratory and injunctive orders, damages on account of profits and other relief. The application related to the advertising of "spec homes" by the respondent building company in various newspapers published in or about August 1990. The causes of action relied upon included infringement of the applicant's copyright in certain house plans by the reproduction of outlines indicating the shape and dimensions of the perimeters of those house designs for the purposes of comparison with the respondent's product.

2. Reliance was also placed upon s.52 of the Trade Practices Act 1974 with respect to certain statements about pricing and other elements of the service offered by the respondent to prospective customers. The respondent was also alleged to have breached an agreement made between the parties in relation to the advertisements.

3. The matter came on for an expedited trial before Gummow J. who gave judgment on 15 October 1990 on questions of liability only. His Honour dismissed the applicant's claim so far as it related to copyright but made declarations to the effect that the respondent had contravened s.52 of the Trade Practices Act in relation to three specified advertisements, and that it had breached its contract with the applicant, the terms of which were contained in a document headed "Minute of Agreement of the Parties". His Honour also ordered that the proceedings be stood over to be restored to the list in Perth on the application of either party on seven days written notice for directions as to the determination of any issues as to damages pursuant to the declarations and that they be otherwise dismissed. He then made a costs order in the following terms:

"The applicant be awarded one half of its costs of the
proceedings insofar as they relate to the issues tried
before Gummow J."

There was a subsequent appeal and the appeal was dismissed.

4. On the taxation of costs under the order made by Gummow J. on 15 October, a question has arisen as to the application of O.62 sub-r.36A(1) of the Federal Court Rules. That sub-rule provides:

"(1) Where a party is awarded judgment for less than
$50,000 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."

And sub-rule (2) provides:

"(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."

5. I should say first, that the applicant's motion today is for a direction that O.62 sub-r.36A(1) is not to apply to the costs order made by Gummow J. The applicant supports the motion on two bases, the first being that the order does not apply as a matter of construction because there was no judgment for less than $50,000 on a claim for a money sum or damages; and alternatively, if it does apply then the nature of the proceedings was such that the court ought, in any event, otherwise order in the terms of the sub-rule.

6. The object of sub-r.36A(1) is to require prospective applicants in proceedings in this Court, when the money sum or damages claimed is likely to be modest, to consider the desirability of proceeding in another jurisdiction such as the District Court or Local Court. In this way the time of the Court will not be occupied with actions for comparatively small amounts of money that do not involve the more important questions of law on matters related to the development of legal principle in areas of law administered by this Court. Order 62 r.36A(1) is triggered by a money judgment for less than $50,000. In this case there was no money judgment and on the wording of the rule some money judgment is necessary. In my opinion, the operation of sub-r.(1) is not triggered by the simple grant of final declaratory relief. In any event, even if the rule did apply to the case as a matter of construction, I would not think it appropriate that it should be applied and in the exercise of my discretion would order accordingly. To give effect to my opinion that it does not apply, I propose to make a declaration in the following terms:

1. That O.62 sub-r.36A(1) does not apply to the order for costs
made by Gummow J. on 15 October 1990.
2. The respondent to pay the applicant's costs of today's motion
in any event.

I might add that where there is doubt about the application of sub-r.36A(1), it is always open to a party to move under sub-r.36A(2) for an order that the case be treated as one which could more suitably have been brought in another court. That option was open to the respondent in this case, but I would not have acceded to such a motion.