FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Chaste Corporation

Pty Ltd [2003] FCA 195

COSTS – whether an order for costs of a motion that is dismissed can be taxed immediately

Federal Court Rules, O 62 r 3, r 7

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CHASTE CORPORATION PTY LTD (IN LIQUIDATION) (ACN 089 837 329) and OTHERS

No Q 252 of 2001

SPENDER J

BRISBANE

12 MARCH 2003

THE COURT ORDERS THAT:

(1)               The application for interlocutory relief sought in the notice of motion filed 29 January 2003 be dismissed.

(2)               The respondent to the motion have his costs of and incidental to it, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     The ACCC has been unsuccessful in its notice of motion for interlocutory orders, and the respondent to the motion seeks its costs. There is no reason in this case to depart from the ordinary rule that a successful party is entitled to costs. I therefore order that Mr Foster, the fourth respondent in the principal proceedings, have his costs of and incidental to the notice of motion to be taxed if not agreed.

2                     A question arises, however, in relation to whether Mr Foster can immediately proceed to taxation of those costs. It was submitted on his behalf that the effect of O 62, r 7(1)(c), is that he may proceed immediately to taxation of those costs.

3                     Rule 7 provides:

“Where:

(a) an order of the Court directs the payment of costs;

(b) the proceeding is dismissed with costs;

(c) a motion is refused with costs

…

the costs may be taxed without any order directing taxation.”

And subrule 7(2) provides:

“Where -

(a) a proceeding is dismissed with costs; or

(b)              a motion is refused with costs

and the costs are not paid within 14 days after service of a sealed copy of a certificate of taxation of the costs, a party to whom the costs are payable may enter an order for the payment of the taxed costs.”

However, rule 3, which is headed “Time for Dealing with Costs”, provides:

“(1) The Court may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding.

(2) Where the Court makes an order in any proceeding for the payment of costs the Court may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded; and

(3) An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.”

4                     In my opinion, rule 7 is concerned with whether costs may be taxed without any order directing taxation. In the absence of a particular matter coming within the various subcategories identified in subrule 7(1), the costs may not be taxed without an order directing taxation, and if the matter does fall within those, then there is no necessity for an order directing taxation.

5                     Since in this case we have a motion refused with costs, there is no need for an order directing taxation. The effect of rule 3, however, is directed to a different matter, namely, the time at which costs might be taxed. This is an interlocutory proceeding and the effect of O 62, r 3, subrule (3), is that the costs in relation to it shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order. This conclusion is fortified in my opinion by O 62 r 3(2).

6                     This reflects a policy that until the conclusion of the proceedings it is not possible to arrive at a net figure owed by the parties to those proceedings in respect of costs. It also reflects a policy that costs orders of an interlocutory kind ought not be available as a means of affecting the further conduct of the proceedings by way of stifling it for want of funds or otherwise. It seems to me that in the absence of any other order by the Court, the costs that I have ordered to be paid are not to be taxed until the principal proceedings are concluded or there is a further order.

7                     Mr Gibson QC, senior counsel for the 4^th respondent, submits that the Court should make an order allowing the costs to be taxed immediately, because the beneficiary of the costs order is an individual not a corporation and the legal person against whom the order is made is a regulatory agency. In my opinion, there is no reason why the clear policy of O 62, r 3(3) should not be followed in this case, and I decline to make an order that the costs be taxed forthwith. The effect will be that the order for costs that I have made will not be able to be taxed until the principal proceedings are concluded or there is a further order of the Court.

8                     The orders that the Court makes are these: the application for interlocutory relief sought in the notice of motion filed 29 January 2003 is dismissed; the respondent to the motion have his costs of and incidental to it to be taxed if not agreed.

Associate:

Dated: 14 March 2003