FEDERAL COURT OF AUSTRALIA

Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 2) [2015] FCA 727

THE COURT ORDERS THAT:

1.    The application filed by the applicant on 25 May 2015 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

1    Ms Crocker filed this application on 25 May 2015 and requested that it be dealt with as a matter of urgency. Because of that request, at the first mention date of the application, it was set down for hearing today. It is not clear from Ms Crocker’s application exactly what order it is that she seeks. When I asked her what it was, she could not tell me, nor could she nominate which of the Court’s Rules she was relying upon. However, Mr Ferrett for Infa Secure Pty Ltd (Infa Secure) (the former first respondent in this proceeding) told me that he had assumed it must be an application for an order to set aside the usual effect of r 26.12(7) of the Federal Court Rules 2011 (Cth) (the Rules). That rule provides that:

Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued.

2    That rule applies in this case because approximately one month after commencing this proceeding on 1 December 2014, Ms Crocker filed a notice of discontinuance against Infa Secure. That notice was filed on 30 December 2014.

3    Fortunately, during the luncheon adjournment, Ms Crocker was able to obtain some legal advice and she has now put forward the bases upon which she seeks to have the usual operation of r 26.12(7) set aside. Her main contention was that she discontinued against Infa Secure before the proceedings were served on it. She also pointed to the Court’s discretion in relation to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) and submitted that the costs that had been claimed by Infa Secure (approximately $40,000) was excessive. For these reasons, she submitted Infa Secure should not be entitled to any order for costs.

4    Mr Ferrett submitted that Ms Crocker had not put forward any basis upon which the ordinary operation of r 26.12(7) should be set aside. He submitted that the question of service was otiose because Infa Secure’s lawyers filed a notice of acting on 19 December 2014, 11 days before the proceeding was discontinued against it. It also submitted that the quantum of any costs order is a matter that will fall to be determined on the assessment of costs under that order.

5    Whether or not this proceeding was served on Infa Secure is, I agree, now rendered otiose because it appears from the Court file that Infa Secure’s lawyers did, indeed, file a notice of acting on 19 December 2014. If Infa Secure incurred costs as an incident of this proceeding before, and after, that date, and up to the discontinuance on 30 December 2014, it should be entitled to recover those costs against Ms Crocker.

6    I do not consider Ms Crocker has put forward any basis to set aside the usual operation of r 26.12(7). As to whether the costs claimed by Infa Secure are excessive, I agree that is a matter that will fall to be determined by the Registrar in the assessment of those costs. It does not provide a basis for setting aside the usual operation of r 26.12(7) of the Rules.

7    For these reasons, Ms Crocker’s application filed 25 May 2015 is dismissed.

Associate:

Dated:    16 July 2015