FEDERAL COURT OF AUSTRALIA

GS Technology Pty Ltd v Elster Metering Pty Ltd (No 2) [2008] FCA 315

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules Order 62 rule 15

Cummings v Lewis (1993) 113 ALR 285 cited

Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 considered

GS TECHNOLOGY PTY LTD v ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD) AND GSA INDUSTRIES (AUST) PTY LTD

QUD 46 OF 2000

SPENDER J

11 MARCH 2008

BRISBANE

THE COURT ORDERS THAT:

1.                  The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

2.                  The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

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

REASONS FOR JUDGMENT

1                     On 18 January 2008, I pronounced judgment in respect of a number of Notices of Motion in proceedings QUD 46 of 2000.

2                     On that day, I made the following directions:

1.         Any submissions concerning costs by the first respondent, including a draft of the orders which it wishes the Court to make should be filed and served within seven days.

2.         Any submissions concerning costs by the second respondent, including a draft of the orders which it wishes the Court to make should be filed and served within seven days.

3.         Any submissions the applicant wishes to make concerning costs, and a draft of the orders it wishes the Court to make, should be filed and served within a further seven days.

3                     On 25 January 2008, the first respondent filed written submission on the costs, and on 30 January 2008, the second respondent filed written submissions on costs.  No submissions have been filed by the applicant.

4                     Section 43 of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction to award costs, and ss 43(2) provides that the award of costs is in the discretion of the Court.

5                     The principles which guide the exercise of the discretion were summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136.  See also Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 324-9.  It can be said that ordinarily costs follow the event, and a successful litigant is entitled to its costs in the absence of special circumstances justifying some other order.  In these circumstances, the ordinary rule should apply. 

6                     Reserved costs are picked up by Order 62 r 15 of the Federal Court Rules, which rule  provides:

Where the costs of a motion, application or other proceeding are reserved by the Court or a Judge, the costs so reserved shall follow the event unless the Court or a Judge otherwise orders.

7                     I therefore make the following orders.

1.         The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

2.         The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

Associate:

Dated:         11 March 2008