FEDERAL COURT OF AUSTRALIA

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 2) [2008] FCA 1140

Thompson v IGT (Australia) Pty Limited [2008] FCA 994  

CAMPAIGN MASTER (UK) LIMITED v FORTY TWO INTERNATIONAL PTY LTD and BLUEFREEWAY LIMITED

NSD 651 OF 2008

BUCHANAN J

25 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

The application to vary the order for costs made on 27 June 2008 is dismissed.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1                     On 27 June 2008, I dismissed an application for interlocutory relief.  I ordered that the applicant pay the costs of a notice of motion filed on 19 June 2008 (Campaign Master (UK) Limited v. Forty Two International Pty Limited [2008] FCA 979).  The matter has come before me for directions again today.  The applicant has applied for a variation of the costs order arguing that the undertaking to which I referred in paragraph 24 of the earlier judgment was proffered only shortly before the hearing and that, as this provided the foundation or a very substantial foundation upon which the application for interlocutory relief was refused, costs should not be ordered against the applicant prior to the provision of the undertaking but only from the time it was offered. 

2                     Although the undertaking provided a basis for rejecting the first order which was sought by the notice of motion, it was by no means the only matter with which the judgment dealt or the only basis upon which the applicant failed to secure the interlocutory relief which it had sought.  I do not think it is appropriate to attempt to divide the question of costs as between the matters to which the undertaking was addressed and the other matters in respect of which interlocutory relief was sought. 

3                     I agree with the approach which was recently stated by Goldberg J in Thompson v IGT (Australia) Pty Limited [2008] FCA 994 at [63] to [65]:

‘63       The respondent seeks an order that the applicant pay its costs of the application for interlocutory relief.  A distinction needs to be drawn between cases where an application for interlocutory relief succeeds and cases where an application for interlocutory relief is refused and dismissed on the application of the principles applicable to the grant or refusal of interlocutory relief.  If the interlocutory relief is granted all the Court has determined is that there is a serious question to be tried in respect of the particular relevant matter.  In those circumstances the ultimate merits remain to be determined at final trial on examination of all the facts.  In those circumstances the usual order in relation to the costs of the successful application for interlocutory relief is that the costs either be costs in the cause or that the costs be reserved.

64        Where an application for interlocutory relief is refused and dismissed, different considerations apply, particularly where the application is dismissed having regard to the discrete set of principles applicable to applications for interlocutory relief.  That is the general two‑barrel test; whether there is a serious issue to be tried in relation to relevant matters and, if so, whether the balance of convenience is in favour or against the grant of interlocutory relief.

65        Once the matter is determined adversely to the applicant in relation to those principles, the principles which inform the decision of the court do not arise again in the subsequent final hearing; the interlocutory stage of the proceeding is concluded.  In those circumstances I consider it is appropriate that the applicant pay the respondent’s costs of and incidental to the application for interlocutory relief and I so order.’

4                     In the circumstances, I reject the application to vary the order for costs which I made on 27 June 2008.

5                     There will be no costs awarded separately for today as the matter was, in any event, listed for directions.

Associate:

Dated:         25 July 2008