Instant Colour Pty Ltd & Ors v Canon Australia Pty Ltd & Anor [1997] FCA 162 (26 February 1997)

CATCHWORDS

COSTS - costs submissions - whether apportionment appropriate

INSTANT COLOUR PTY LTD and ORS v CANON AUSTRALIA PTY LTD and ANOR

NO WAG 93 OF 1991

R D NICHOLSON J

PERTH

26 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 93 OF 1996

B E T W E E N: INSTANT COLOUR PTY LTD & ORS

Applicants

and

CANNON AUSTRALIA PTY LTD & ANOR

Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 26 FEBRUARY 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The applicants pay 80 per cent of the respondents' costs on the costs submissions to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 93 OF 1996

B E T W E E N: INSTANT COLOUR PTY LTD & ORS

Applicants

and

CANNON AUSTRALIA PTY LTD & ANOR

Respondents

CORAM: R D NICHOLSON J

DATE: 26 FEBRUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

The question arises as to how the costs on the costs submissions should be dealt with. The applicants seeks from the court one of three alternatives. The first is the respondents pay the costs of the applicants on the costs of the costs submissions. The second is there be an apportionment in favour of the applicants. This is pressed in two ways: either that an order be made against the respondents or any order against the applicants be apportioned. The third is there be no order as to costs. As to the quantum of any apportionment, it is submitted that 60 per cent may be appropriate.

For the respondents it is submitted they were substantially successful on the costs submissions and therefore ought to be awarded the costs in relation to those submissions. Furthermore, it is said that although the Court in its reasons of 13 December 1996 and its order made on that date apportioned the costs so that the applicants were ordered to pay 80 per cent of the respondents' costs to be taxed, the amount of the respondents' costs not paid were attributable to the notion of public wrong which represented only a small part of the issues raised by the applicants. Finally, it is submitted for the respondents that if there is to be an apportionment at least 80 per cent of the costs of the respondents on the costs submissions should be ordered to be paid by the applicants.

In submissions for the applicants it is stressed the submission in relation to the notion of public wrong which led to apportionment was a significant and not a small part of the applicants' case. In my view examination of the reasons of 13 December 1996 supports that submission for the respondents.

In my opinion the applicants having succeeded on the notion of public wrong and in the resultant apportionment in the order made on 13 December 1996 are in the position where, so far as the costs on the costs submissions are concerned, they have been successful on a significant issue. Nevertheless, they have failed on other issues.

I see no proper basis for the exercise of any discretion to make either the first or the third of the applicants' proposed orders. There is no basis to order there be no order as to costs. Likewise, I do not consider there is a proper basis to order the respondents pay all of the applicants' costs.

In my opinion, the apportionment which was found appropriate for the costs as reflected in the reasons of the 13 December 1996, for similar reasons flows over to the costs in relation to the costs submission. The applicants having succeeded on the notion of public wrong should bear the costs of the costs submissions which lead to a reduction of 20 per cent in the costs order made against them. I therefore consider an order should be made in terms of the applicants' second proposed course of action but apportioned as to the quantum pressed in the case of apportionment on behalf of the respondents.

For these reasons I would order that the applicants pay 80 per cent of the respondents' costs of the costs submission to be taxed. That is the end of my draft reasons.

I certify that this and the preceding page are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 26 February 1997

APPEARANCES

Counsel for the Applicants: Mr B Taylor

Solicitors for the Applicants: Karp & Monaghan

Counsel for the Respondents: Mr A Harman

Solicitors for the Respondents: Clayton Utz

Date of Hearing: 26 February 1997

Date of Judgment: 26 February 1997