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Federal Court of Australia |
Last Updated: 15 February 2000
FCA 98
SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LTD v NEWS LIMITED & ORS
N 1295 OF 1999
HELY J
7 FEBRUARY 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
1. Grant leave to the applicant to file in Court an amended application.
2. Extend the time by which the third respondent is to file and serve its defence to the further amended statement of claim to 11 February 2000.
3. Direct the applicant to serve on the third respondent a document identifying the classes of documents in relation to which the applicant seeks discovery by 18 February 2000.
4. Direct the third respondent to notify the applicant whether it is content to provide discovery of the classes of documents sought or whether it opposes providing discovery of the classes sought and, if there is opposition, to state the areas of the opposition and briefly state the grounds of the opposition by 25 February 2000.
5. Direct the applicant and the first and second respondents (the News respondents) to agree on categories for discovery by the News respondents by 14 February 2000.
6. Direct the News respondents to provide the applicant with informal discovery of the agreed classes of documents by 28 February 2000.
7. Direct the fourth respondent to provide the applicant with informal discovery of the agreed classes of documents in relation to which the applicant seeks discovery by 28 February 2000. This order is made in the expectation that agreement will be reached, although such agreement has not yet been reached.
8. Direct the third respondent to provide the applicant with informal discovery of the agreed classes of documents in relation to which the applicant seeks discovery by 3 March 2000.
9. Direct the applicant to file and serve all further affidavits upon which it proposes to rely in opposition to the fourth respondent's motion for security for costs by noon 14 February 2000.
10. Direct that the fourth respondent's motion for security of costs be fixed for hearing at 9:15am on 16 February 2000.
11. Direct that the proceedings be listed for further directions on 11 February 2000.
12. Grant liberty to relist the proceedings on two days' notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
JUDGE: |
HELY J |
DATE: |
7 FEBRUARY 2000 |
PLACE: |
SYDNEY |
1 On 3 December 1999 I gave judgment in which I dismissed a notice of motion brought by South Sydney District Rugby League Football Club Limited ("Souths") seeking interlocutory relief in relation to the National Rugby League ("NRL") competition in the year 2000. I reserved the question of costs until today and indicated that I would either determine the question of costs myself or consider whether the costs issue should be reserved for determination by the trial judge.
2 Mr Scheib, who appeared for Souths, accepted that if the costs were to be determined today, subject to one possible qualification, it would be appropriate for Souths to be ordered to pay the costs because the issue for determination was whether there should be interlocutory relief and Souths failed upon that issue.
3 However, Mr Scheib submits that I should reserve the question of costs for determination by the trial judge for two reasons. Firstly, because of the public interest factors which are associated with claims instituted under the Trade Practices Act 1974 (Cth) ("TPA") and secondly, because the trial judge will have a clearer focus from which to determine the costs issue.
4 As matters currently stand, it is not clear whether I will or will not be the trial judge, however, it seems to me that the trial judge will be in no better position that I am to determine the question of costs. Indeed, a trial judge may be in a more disadvantageous position in relation to the determination of that issue.
5 I say that essentially for three reasons. First, Souths failed in its claim for interlocutory relief, not because it had not established that there was a serious question to be tried, but because of the balance of convenience factors. Whether Souths should be included in the year 2000 competition will not be an issue litigated before the trial judge and balance of convenience considerations will not figure at the trial.
6 Second, Souths has amended its statement of claim so as to reformulate to some extent the issues which arise under the TPA. Third, even though I found that there was a serious question to be tried on an issue arising under the TPA, I did find that many other elements of Souths' claims did not give rise to triable issues.
7 Whilst it is true that public interest considerations figure largely in trade practices claims, I do not think that they really bear upon the question of costs. All that the public interest factors indicate is that the entire community has an interest in the maintenance of a competitive environment which the TPA is designed to secure.
8 When account is taken of all of these factors I think that it is appropriate that I should determine the question of costs now, rather than reserving it for consideration by a trial judge. As I said, subject to one item, Mr Scheib accepts that if the issue of costs is to be determined, an appropriate order is that Souths should pay the respondents' costs of the notice of motion.
9 The one matter which Mr Scheib reserved was whether an order should be made in relation to all of the respondents' costs or whether there should only be a single set of costs so far as the first, second and third respondents are concerned. That issue arises because the first and second respondents on the one hand, and the third respondent on the other hand, are partners in the fourth respondent.
10 When this matter was last heard before me on 13 December 1999 I gave directions that if there was to be a submission that there should be one set of costs between the first four respondents, notification to that effect should be given prior to the hearing today, together with some particularisation of the basis upon which the submission was to be put. That was not done and the issue of confining the costs orders was raised by Mr Scheib for the first time in his submissions in reply.
11 Notwithstanding these procedural irregularities, I think I should entertain his submission. I do, however, find that there is force in the respondents' submissions that this was a case where it was difficult to tell in advance whether there would be complete community of interest between the affected respondents, particularly as the matter was brought on quickly and as a matter of urgency.
12 In those circumstances I am not prepared to place any limitation on the costs order. The order which I will make is simply that the applicant pay the respondents' costs of the notice of motion for interlocutory relief.
13 I make order 2 in accordance with the short minutes of order. I make order 3. I make order 4. I make order 5. I make order 6. I make order 7, substituting 28 February for 21 February. I make order 8 substituting 28 February for 14 February and I simply note that order 8 is made in the expectation that agreement will be reached but that in fact agreement has not yet been reached. I make order 9. I will simply direct that the hearing of the motion for security for costs be fixed for hearing at 9.15 am on 16 February 2000.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. |
Associate:
Dated: 15 February 2000
Counsel for the Applicant: |
M Scheib |
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Solicitor for the Applicant: |
Nicholas G Pappas & Co |
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Counsel for the First and Second Respondents: |
J Campbell QC |
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Solicitor for the First and Second Respondents: |
Allan Allan & Hemsley |
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Counsel for the Third Respondent: |
I Pike |
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Solicitor for the Third Respondent: |
Love Colin W & Co |
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Counsel for the Fourth Respondent: |
J E Marshall |
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Solicitor for the Fourth Respondent: |
Minter Ellison |
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Counsel for the Fifth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and Twentieth Respondents: |
A P Coleman |
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Solicitor for the Fifth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and Twentieth Respondents: |
Henry Davis York |
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Date of Hearing: |
7 February 2000 |
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Date of Judgment: |
7 February 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/98.html