FEDERAL COURT OF AUSTRALIA

Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682

SUPPLEMENTARY REASONS FOR JUDGMENT

BUNNINGS PTY LTD (ACN 008 672 179) v LAMINEX GROUP LIMITED (ACN 004 093 092)

VID 941 of 2004

YOUNG J

2 JUNE 2006

MELBOURNE

THE COURT ORDERS (IN ADDITION TO PARAGRAPHS 1 & 2 OF THE ORDERS OF 2 JUNE 2006) THAT:

3. The respondent pay the applicants’ costs of an incidental to the trial of the separate question.

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

SUPPLEMENTARY REASONS FOR JUDGMENT

1                     On 2 June 2006, I delivered judgment in this proceeding on a separate question: see [2006] FCA 682.   The separate question was heard and determined before the trial of any other question arising in this proceeding, pursuant to orders made by Weinberg J on 22 April 2006 (‘the Orders’). 

2                     The successful party on the separate question, the applicant, applied for the costs of the hearing and determination of the separate question.  Paragraph 8 of the Orders stated that the costs of and incidental to the respondent's notice of motion dated 23 March 2005 be costs in the cause.  Both counsel for the applicant and the respondent are agreed that, by paragraph 8 of the Orders, Weinberg J simply addressed the costs of the contested motion which sought to persuade the Court to order the trial of a separate question before the trial of other issues in the proceeding.  I have before me an application for the costs of the actual hearing and determination of that separate question, which raises a different matter.  I have a discretion concerning the costs of the preliminary question.  The discretion is unfettered but, of course, must be exercised judicially.

3                     The separate question offered perceived advantages to the respondent.  Had it been successful in persuading the Court that the relevant products were not goods within the meaning of section 74A(2)(a) of the Trade Practices Act 1974 (Cth), that would have brought the proceedings to an early end, and the respondent would have achieved complete success.

4                     The respondent had the option of arguing the definitional issue (ie, the separate question) along with all of the other issues at a trial of the proceedings, however it sought and obtained an order for a separate preliminary trial.  I accept, as counsel for the respondent submitted, that there are many other substantive issues that remain to be heard and determined at the trial of this proceeding.  There are substantial defences and other grounds on which the respondent may ultimately succeed in its defence of the action.

5                     Had all of the issues, including the definitional question, been heard and determined at a single trial, the costs issue that would have confronted the trial judge would be a question of whether some portion of the costs ought to be allocated against one party because of its lack of success on a particular issue.

6                     The questions that confront me on this cost application are somewhat different.  I need to bear in mind the fact that there has been a separate trial of the question.  The very separation of the question is some indication that the costs of the separate issue should be dealt with as a discrete matter.  Another factor that points in the same direction is the practical consideration that the very separation of the preliminary question is likely to have increased the costs associated with its determination.  By saying that, I mean no criticism of the parties.  I do not mean to suggest that this issue would not have been contested fully and vigorously at a combined trial.  But in the nature of things, the preparation and conduct of a separate hearing necessarily brings its own set of costs.

7                     I consider that I should deal separately with the costs of the preliminary question.  In my opinion, bearing all of the submissions that have been made to me in mind, I consider that the respondent should pay the applicant's costs of and incidental to the trial of the separate question, and I so order. 

Associate:

Dated:              30 June 2006