Austal Ships Pty Ltd (ACN 079 160 679) v Incat Australia Pty Ltd (ACN 051 556 855) (No 2) [2009] FCA 609 (8 June 2009)

Last Updated: 9 June 2009

FEDERAL COURT OF AUSTRALIA

Austal Ships Pty Ltd (ACN 079 160 679) v Incat Australia Pty Ltd
(ACN 051 556 855) (No 2) [2009] FCA 609

COSTS – discretionary factors

Held: No order as to costs.

Austal Ships Pty Ltd (ACN 079 160 679) v Incat Australia Pty Ltd (ACN 051 556 855) [2009] FCA 368

AUSTAL SHIPS PTY LTD (ACN 079 160 679) v INCAT AUSTRALIA PTY LTD (ACN 051 556 855), INCAT TASMANIA PTY LTD (ACN 054 616 410), INCAT MARKETING PTY LTD (ACN 084 060 408), INCAT INVESTMENTS PTY LTD (ACN 009 570 325), INCAT EUROPE APS, INCAT EUROPE LIMITED, ROBERT FREDERICK CLIFFORD, JUSTIN PAUL MERRIGAN and STEVEN JAMES THURLOW
WAD 163 of 2007

MCKERRACHER J
8 JUNE 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 163 of 2007

BETWEEN:

AUSTAL SHIPS PTY LTD (ACN 079 160 679) Applicant

AND:

INCAT AUSTRALIA PTY LTD (ACN 051 556 855) First Respondent INCAT TASMANIA PTY LTD (ACN 054 616 410) Second Respondent INCAT MARKETING PTY LTD (ACN 084 060 408) Third Respondent INCAT INVESTMENTS PTY LTD (ACN 009 570 325) Fourth Respondent INCAT EUROPE APS Fifth Respondent INCAT EUROPE LIMITED Sixth Respondent ROBERT FREDERICK CLIFFORD Seventh Respondent JUSTIN PAUL MERRIGAN Eighth Respondent STEVEN JAMES THURLOW Ninth Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	8 JUNE 2009
WHERE MADE:	PERTH

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
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 163 of 2007

BETWEEN:

AUSTAL SHIPS PTY LTD (ACN 079 160 679) Applicant

AND:

INCAT AUSTRALIA PTY LTD (ACN 051 556 855) First Respondent INCAT TASMANIA PTY LTD (ACN 054 616 410) Second Respondent INCAT MARKETING PTY LTD (ACN 084 060 408) Third Respondent INCAT INVESTMENTS PTY LTD (ACN 009 570 325) Fourth Respondent INCAT EUROPE APS Fifth Respondent INCAT EUROPE LIMITED Sixth Respondent ROBERT FREDERICK CLIFFORD Seventh Respondent JUSTIN PAUL MERRIGAN Eighth Respondent STEVEN JAMES THURLOW Ninth Respondent

JUDGE:	MCKERRACHER J
DATE:	8 JUNE 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 20 April 2009 I delivered reasons substantially declining the applicant’s motions for further particular discovery, refusing an order to direct the respondents to respond to its notice to admit facts and refusing any order for leave to serve notices to produce (Austal Ships Pty Ltd (ACN 079 160 679) v Incat Australia Pty Ltd (ACN 051 556 855) [2009] FCA 368). I also dismissed the respondents’ motion for judgment.
2. In the conclusion to my reasons I expressed the view (at [166]) that I considered there should be no order as to costs. I indicated that I would consider any written submission to the contrary from the parties.
3. The applicant suggests that costs should be in the proceeding on the basis that it enjoyed some limited success. The respondents disagree and contend no order as to costs more accurately reflects the outcome of the arguments.
4. The very limited relief which the applicant enjoyed was the making of an order that discovery be given on behalf of the respondents on a formal basis.
5. By far the majority of the hearing both in terms of actual hearing time and preparation for the hearing was taken up in the applicant’s pursuit of wide ranging discovery which I described as fishing. I have accepted the assurance given by senior counsel for the respondents which was that if formalisation of discovery was all that had been sought, it would have been provided promptly. On the other hand, the respondents also failed on their motion for judgment for that portion of the claim (in respect of which there was no admissions).
6. I do not consider that the formalisation of discovery order warrants any form of costs order in favour of the applicant. It did not require a significant hearing which was devoted to the matters on which the applicant failed in order to obtain that order. Equally, I do not consider that the respondents are entitled to any costs order.
7. I remain of the view that the more appropriate exercise of discretion is that there be no order as to costs because the applicant substantively failed in pursuit of its relief and the pursuit of its relief took up much more time than did the motion for judgment pursued by the respondents.
8. I maintain my view that the appropriate disposition of the matter is that there be no order as to costs. Accordingly, I will order as follows in respect of the motions dealt with in the primary reasons delivered on 20 April 2009:
   1. There 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 McKerracher.

Associate:

Dated: 8 June 2009

Counsel for the Applicant:	JJ Garnsey QC with R McCormack
Solicitor for the Applicant:	Stables Scott
Counsel for the Respondents:	M Zilko SC
Solicitor for the Respondents:	Deacons

Date of Last Written Submissions on Costs	8 May 2009
Date of Judgment:	8 June 2009