FEDERAL COURT OF AUSTRALIA

PEP Community Services Inc. trading as PEP Community Services v Job Futures Ltd [2008] FCA 1264

SUPPLEMENTARY REASONS FOR JUDGMENT

PEP COMMUNITY SERVICES INC. TRADING AS PEP COMMUNITY SERVICES v JOB FUTURES LTD

WAD 113 of 2008

MCKERRACHER J

18 aUGUST 2008 (SUPPLEMENTARY REASONS 9 SEPTEMBER 2008)

PERTH

THE COURT ORDERS (IN ADDITION TO ORDERS OF 18 AUGUST 2008) THAT:

1.                  The costs of the motion and the supplementary submissions in relation to the motion be the applicant’s costs in the cause.

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

SUPPLEMENTARY REASONS FOR JUDGMENT

1                     On 18 August 2008 I delivered reasons for declining to transfer these proceedings from the Western Australia District Registry to the New South Wales District Registry. 

2                     I reserved the question of costs pending receipt of short submissions by the parties.  Those submissions have been received.

3                     For the applicant in the transfer application, (the respondent in this proceeding and in proceeding WAD 114 of 2008), it is submitted that in referring the proceedings to the Federal Court, the Supreme Court of Western Australia expressly refrained from nominating to which Registry of the Federal Court the proceedings ought be referred because there were both Western Australian and New South Wales elements in the claims.  Mr LA Tsaknis, counsel for the respondent points out that the determinations as to which Registry the action ought be transferred, was necessary to facilitate the progress of the action and was analogous to a direction made at a directions hearing, the costs of which are usually in the cause.

4                     Reliance is also placed on my conclusion that the issues canvassed in the debate were fairly finely balanced.  The respondent submits that it was not unreasonable for the respondent to bring the motion.  In my view that submission is correct. 

5                     The applicant, on the other hand, seeks an order that the respondent pay its costs of the motion in any event as costs should follow the event. 

6                     By s 43 of the Federal Court of Australia Act 1976 (Cth) it is relevantly provided:

(1)       Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

…

(2)       Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

7                     The applicant has referred to the observation by Toohey J in Hughes v WA Cricket Association (Inc) [1986] ATPR 48,134 at 48,136, where his Honour noted that the unfettered costs discretion must of course be exercised judicially.  There are decisions which throw light on the way in which the discretion is to be exercised.  Ordinarily, costs will follow the event and a successful litigant receives his or her costs in the absence of special circumstances justifying some other order.  However, in Hughes, his Honour was referring to success in the principal proceeding.

8                     It is true that the respondent did not have to bring a transfer motion.  However, as I have observed, the merits were finely balanced and it was not at all unreasonable or unarguable that it should do so. 

9                     It appears to me that the appropriate disposition which reflects on the one hand the responsible nature of the application brought at an early time in the proceedings (in this Court at least) and on the other, the fact that the application did not succeed, is that the costs of the motion should be the applicant’s costs in the cause.  If the applicant ultimately succeeds it will have the costs of the motion.  If it ultimately fails, it will not.  Put another way, if the applicant eventually succeeds there will be no detriment to the applicant by the order which I propose to make and if the applicant does not succeed, it would be unfair for the applicant nevertheless to be able to recover the costs of this motion which I consider was brought responsibly and was more in the nature of a directions hearing. 

10                  Accordingly, I order that the costs of the motion and the supplementary submissions in relation to the motion be the applicant’s costs in the cause.

Associate:

Dated:         9 September 2008