FEDERAL COURT OF AUSTRALIA

United Broadcasting International Pty Ltd (No. 2) v TV Plus Int Pty Ltd

[2007] FCA 485

UNITED BROADCASTING INTERNATIONAL PTY LTD v TV PLUS INT PTY LTD, TV PLUS BROADCASTING COMPANY PTY LTD AND TV PLUS OPERATIONS COMPANY PTY LTD

NSD 2379 OF 2006

CONTI J

3 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The costs of the respondents necessarily incurred and thrown away by the amendments effected by the applicant’s amended statement of claim filed on 15 December 2006 be paid by the applicant. 

2.         The costs otherwise of and incidental to the interlocutory hearing on 15 and 21 December 2006 be the costs of the parties respectively. 

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

REASONS FOR JUDGMENT ON COSTS

1                     Following upon the interlocutory hearing in these proceedings and my reasons for judgment delivered on 16 February 2007, the parties have provided written submissions as to the costs of those interlocutory proceedings in the light of what has happened since the commencement of the proceedings on 6 December 2006.  As would be apparent from my reasons for interlocutory judgment published on 16 February 2007, the proceedings are complex in their structure and in relation to the approaches respectively taken by the parties by virtue of their respective perceptions of the issues arising or sought to be raised.

2                     It is apparent that TV Plus is entitled to its costs thrown away in consequence of UBI propounding an amended statement of claim on 15 December 2006.  Beyond that, the issues raised by the parties in their respective written submissions as to costs involve some complexity, following upon the implications of my reasons for judgment on 16 February 2007.

3                     The theme of the submissions of TV Plus as to costs was to the effect that UBI had been unsuccessful in its prosecution of the interlocutory proceedings held on 15 and 21 December 2006.  Upon that purported footing I was referred by TV Plus to six authorities of this Court, none of which seemingly mirrored the implications of the present proceedings, such as to require any different approach to what I foreshadowed at [64]-[66] of my reasons for interlocutory judgment of 16 February 2007.  Moreover in my interlocutory judgment of 16 February 2006, I drew attention to the potential significance of the absence of Javni Radio Televizijski Services BiH (‘JRTS’) as a cross-respondent to the proceedings, given the issues which TV Plus has raised as to its asserted contractual entitlements derived from JRTS. 

4                     As foreshadowed, my only qualification to that view is that TV Plus is entitled in principle to an order as to costs thrown away in consequence of UBI’s original statement of claim not being pursued in the form in which it originally appeared.  Had I been minded to make a more favourable costs order in favour of TV Plus, the same would not in any event have approached in quantification what TV Plus has foreshadowed. 

5                     The competitive rivalry between the present parties arising in the unusual circumstances of this case has led me to the view that I should make no order at least presently as to costs of and incidental to the interlocutory hearing on 15 and 21 December 2006, other than in relation to the costs of TV Plus thrown away by the amendments made by UBI to the statement of claim on 15 December 2006.  Moreover it may be that UBI will seek to agitate, by way of additional relief, what TV Plus has foreshadowed to the Court in the context of the further interlocutory debate which I have outlined at [39] of my reasons for interlocutory judgment.

Associate:

Dated:         4 April 2007