FEDERAL COURT OF AUSTRALIA

Jaycar Pty Ltd v Flood trading as Eclipse Security Systems [2006] FCA 1560

One-Tel v Commissioner of Taxation (2000) 101 FCR 548, followed

Australian Consumer & Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396, followed

JAYCAR PTY LTD v GREG FLOOD TRADING AS ECLIPSE SECURITY SYSTEMS

NSD 904 OF 2006

TAMBERLIN J

16 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1. The applicant is awarded two thirds of its costs, on a party-party basis, as well as the costs of this application.

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

REASONS FOR JUDGMENT

1                     In this matter the parties are agreed the application should be dismissed. 

2                     The only remaining question is one in relation to costs.  I have been referred to the decision of Burchett J in One-Tel v Commissioner of Taxation (2000) 101 FCR 548 which was followed by Weinberg J in Australian Consumer & Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396.  I think the principles in that case are applicable in this matter.  The general principle is, of course, that costs should follow the outcome, and the outcome in this case is that the applicant was successful and has achieved the result for which the proceedings were instituted.

3                     The argument has been advanced on behalf of the respondent that there should be no order as to costs on the basis that the proceedings were brought prematurely.  I am satisfied that the efforts made by the respondent in relation to the domain name were effectively brought about as a consequence of the institution of the proceedings.  At the time the proceedings were instituted, the relevant relationship had ceased.  However, I am also persuaded that the respondent did take bona fide steps to discontinue the use of the domain name and I think that some allowance should be made for this.

4                     Accordingly, I consider that the applicant should have its costs. However, in my view, those costs should be two-thirds of the costs which have been incurred in this matter on a party-party basis as taxed or agreed. The result is that the applicant succeeds in obtaining (i) the costs of this application; and (ii) the costs that were the subject of this application apportioned so that two-thirds of those costs are recovered by the applicant.

Associate:

Dated:         29 November 2006