CA Inc v Independent Systems Integrators Pty Limited (No 1) [2009] FCA 309 (11 March 2009)

Last Updated: 2 April 2009

FEDERAL COURT OF AUSTRALIA

CA Inc v Independent Systems Integrators Pty Limited (No 1) [2009] FCA 309

CA, INC and CA (PACIFIC) PTY LTD v INDEPENDENT SYSTEMS INTEGRATORS PTY. LIMITED
NSD 1572 of 2008

PERRAM J
11 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1572 of 2008

BETWEEN:

CA, INC First Applicant CA (PACIFIC) PTY LTD Second Applicant

AND:	INDEPENDENT SYSTEMS INTEGRATORS PTY. LIMITED Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	11 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. There be no order as to costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1572 of 2008

BETWEEN:

CA, INC First Applicant CA (PACIFIC) PTY LTD Second Applicant

AND:	INDEPENDENT SYSTEMS INTEGRATORS PTY. LIMITED Respondent

JUDGE:	PERRAM J
DATE:	11 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By a notice of motion filed on 24 February 2009 the respondent sought orders which would permit inspection of certain confidential materials that had been filed by the applicants. Those confidential materials relevantly were paragraphs 90 and 91, together with pages 21 to 23, of a confidential exhibit marked KPS 1 to an affidavit of Mr Kevin Shuma sworn 30 September 2008. The motion sought an order that access be granted to three officers of the respondent, Mr Righetti, Mr McGeorge and Mr Richards. That motion came briefly before me at a directions hearing on 24 February 2009. At that time the parties were not in a position to deal with the matter and the motion was stood over for hearing on 4 March 2009.
2. When the matter came on for hearing on 4 March 2009 the parties had effectively achieved a result which satisfied both of them and the matter was stood over to today to deal with procedural matters. I was informed from the bar table that the solution which had been achieved was the provision to the three officers I have named of the confidential materials sought but with certain portions redacted. The respondent seeks, in those circumstances, an order that the applicant pay the costs of the notice of motion.
3. The bases upon which that submission was made were twofold. First, it was said that when one had regard to the extent of the redactions, the respondent had been substantially successful on the motion. Secondly, it was said that having regard to the history of the confidentiality question between the parties it should be concluded that the conduct of the applicant, which had caused the filing of the motion, was unreasonable and that unreasonableness was a matter which was relevant when it came to considering the issues of costs.
4. For the applicants it was said that there had obviously been an element of compromise and that the assumption upon which the respondent’s position rested, viz that it had succeeded on the motion, was not correct.

Consideration

5. In Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 McHugh J indicated the general position which should be taken where proceedings have been settled as a result of an accommodation. His Honour’s remarks were directed to the settlement of final proceedings, more particularly judicial review proceedings, however, there is nothing in his Honour’s statement of principle at 624 which appears to me to be in any way inapplicable to an interlocutory proceeding of the present kind. There may well be, as his Honour indicated in that case, circumstances in which it is appropriate to administer a costs order to one party or the other. For example, there may be cases where the position adopted was one which overwhelmingly had to succeed or must obviously have failed. His Honour, however, pointed out that what must be avoided is an entry into the merits, or otherwise, of the debate except in the clearest of cases.
6. Here it is apparent that there has been some element of compromise by both parties. Whilst it is true that, looking at the documents, there appears to have been substantial disclosure, that is in my opinion a misleading metric by which to approach the question. In order to have a full grasp of the extent of the compromise one would need both to know the extent of the redactions which have taken place and, more importantly, to know the significance of those redactions. Without that evidence it is difficult to say with any clarity that one party has overwhelmingly succeeded or that one party has obviously failed. It seems to me that there has been an element of compromise. That would, in the ordinary course, lead to the appropriate costs order being an order that each party pay their own costs. That, of course, does not resolve the argument advanced by Mr Darke based upon the alleged dilatory procedures adopted by the applicants.
7. I do not think that the history of dilatoriness as it was outlined to me, however, was anything which was particularly unusual. Nor do I think that the fact that the matter was settled a mere 20 minutes before the hearing of the motion advances the matter particularly far. Importantly, it might be said that while the approach taken by the respondent in correspondence was more constructive in that it sought to put in place certain regimes, the regime which was ultimately put in place is not the regime that was being contemplated in that correspondence. In that circumstance I do not think that that matter, or the manner in which that issue was approached, is sufficient to displace what I think should otherwise be the costs order.
8. There will be no order as to costs.
   

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 1 April 2009

Counsel for the Applicants:	Mr R Cobden SC with Mr RM Higgins
Counsel for the Respondent:	Mr SG Finch SC with Mr MJ Darke

Date of Hearing:	4, 11 March 2009
Date of Judgment:	11 March 2009
Date of Publication of Reasons:	30 March 2009