FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Boral

Ltd  [1999]  FCA 663

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION V BORAL LIMITED

VG 79 OF 1998

HEEREY J

21 MAY 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The respondents pay, on a solicitor and own client basis, the costs which Rocla Limited incurred in making non-party discovery in accordance with the orders of this Court dated 10 February 1999, including costs relating to preparation of submissions.

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

RULING

1                     The respondents and Rocla Limited have filed written submissions dated 24 February 1999 and 4 March 1999 respectively.  I incorporate those submissions by reference.  I note that the respondents do not contend that there is no jurisdiction to order costs on a solicitor and own client basis, as sought by Rocla.  

2                     It seems to me only basic fairness that a non-party, who has neither instigated litigation nor engaged in conduct which has provoked another to litigate, should not be out of pocket.  Put another way, it does not seem reasonable that a non-party should be effectively compelled by Court order to subsidise litigation in which it has no interest. 

3                     I agree with Rocla’s submission that the public interest in encouraging non-parties to make as full and complete discovery as possible will be served if these parties are aware that their legal costs will be recoverable. 

4                     I will order that the respondents pay, on a solicitor and own client basis, the costs of Rocla incurred in making non-party discovery, including costs relating to preparing its submissions.

Associate:

Dated: