FEDERAL COURT OF AUSTRALIA

Food Channel Network Pty Ltd v Television Food Network GP (No 2) [2010] FCAFC 74

THE COURT ORDERS THAT:

1.                  The orders of 2 June 2010 remain unvaried.

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 Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.                  The orders of 2 June 2010 remain unvaried.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             On 2 June 2010, the Court allowed the appeals in these matters with costs to the appellant.  When judgment was delivered, Counsel for the appellant sought and was given leave to make submissions in relation to the basis on which those costs should be quantified.

2                                             The appellant seeks an order that the costs awarded to it be indemnity costs.  The respondent seeks an order reducing the costs awarded against it by 10 per cent, having regard to the appellant’s conduct of his case.

3                                             The appellant seeks to rely on an affidavit of Trevor George Hauff to establish, inter alia, that these proceedings were pursued by the respondent as an abuse of process.  The respondent objects to the reception of this affidavit.  This objection must be upheld.

4                                             The appellant was not given leave to file further evidence.  The appellant’s attempt to expand the scope of this litigation must be resisted.  This litigation is a game that has not been worth the candle.  There would be no justice and little mercy in allowing it a new lease of life by permitting the appellant to present a claim for abuse of process in the guise of an argument about the measure of the costs it is entitled to recover.

5                                             Apart from the affidavit which we have rejected, the appellant relies upon its ultimate success in the appeal coupled with the fact that by letter dated 29 February 2008, it made an offer to settle the action brought by the respondent to make the submission that the respondent’s continued prosecution of the proceedings was so unreasonable as to warrant the recovery by the appellant of indemnity costs.

6                                             The letter of 29 February 2008 on which the appellant relies allowed only one day for acceptance by the respondent.  It is ironic that the appellant should seek to rely upon a failure to accept such an unreasonable ultimatum to establish unreasonableness on the respondent’s part.

7                                             In our opinion, neither party to this litigation is in a position to claim a favourable exercise of the Court’s discretion based on the unreasonableness of the conduct of the other party.  In the end, the appellant’s position has been vindicated by this Court’s orders including an order for the recovery of costs on the usual basis as between party and party.  But while the appellant was ultimately successful, the state of the evidence presented by the appellant to the learned trial judge contributed in no small part to the miscarriage of the case at trial.

8                                             We are not disposed to exercise our discretion to alter that position by a special order in favour of either party, on the basis that the conduct of the proceedings by one party was more unreasonable than the conduct of the other.  Accordingly, we decline to vary in any way the orders of 2 June 2010.

Associate:

Dated:         21 June 2010