FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v PRK Corporation Limited (No 2)

[2008] FCA 523

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v PRK CORPORATION LIMITED (FORMERLY KNOWN AS TOLL (PRK) LIMITED) & ORS

NSD 1703 OF 2007

SACKVILLE J

18 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The costs incurred by the parties in relation to the respondents’ motions, including the costs of the motion of the tenth respondent, be costs in the cause.

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

REASONS FOR JUDGMENT

1                     In a judgment delivered on 28 March 2008, I dealt with motions filed by the respondents seeking to strike out the whole or portion of the amended statement of claim: Australian Competition and Consumer Commission v PRK Corporation Limited [2008] FCA 403.  I directed the applicant (‘ACCC’) to file and serve a further amended statement of claim within 28 days.  I also directed that the filing and service of the further amended statement of claim be without prejudice to the entitlement of any of the respondents to file a motion seeking orders striking out the whole or portion of the further amended statement of claim.  Otherwise, the motions were dismissed.

2                     I stated in the judgment that my intention was to order that the costs of the various motions should be costs in the cause.  However, I provided for any party wishing to seek different costs orders to file written submissions.

3                     The only party seeking a different costs order is the tenth respondent (‘Mr Corrigan’).  Mr Corrigan does so on the basis that he was successful in his contention that the amended statement of claim failed to plead material facts necessary to support the allegations of accessorial liability against him.  He submits that costs ought to follow the event.

4                     The motion filed on behalf of Mr Corrigan sought an order striking out the whole or, alternatively, paras 293-296 of the amended statement of claim.  The latter paragraphs pleaded a case of accessorial liability against Mr Corrigan in relation to certain alleged breaches by other respondents of s 45(2) of the Trade Practices Act 1974 (Cth). 

5                     Mr Corrigan’s written submissions in support of his motion adopted generally the submissions made on behalf of other respondents, save the matters particular to them.  Mr Corrigan’s written submissions specifically argued that the pleading in paras 293-296 of the amended statement of claim was defective.

6                     The ACCC answers Mr Corrigan’s contentions on costs by pointing out that he adopted generally the submissions made by the other respondents, including submissions that went well beyond the particular issues relating to accessorial liability.  The ACCC also points out that it is not surprising that counsel for Mr Corrigan did not advance any oral arguments in support of the broader strike out contentions, since those arguments were fully presented by counsel representing other respondents.  The ACCC contends that Mr Corrigan, like the other respondents, was not wholly successful on his motion.

7                     In my view, Mr Corrigan would have had a good claim to an order for costs in his favour had he confined his submissions to the defects in the particular paragraphs pleading a case of accessorial liability against him.  Because Mr Corrigan aligned himself with the broader submissions made by the other parties, I think it appropriate that his costs, like those of the other parties, should be costs in the cause.

8                     I therefore propose to order that the costs incurred by the parties in relation to the respondents’ motions, including the motion of the tenth respondent, be costs in the cause.

Associate:

Dated:         18 April 2008