Maniotis v J H Lever & Co Pty Ltd ACN 008 220 666 [2006] FCAFC 7

FEDERAL COURT OF AUSTRALIA

Maniotis v J H Lever & Co Pty Ltd ACN 008 220 666 [2006] FCAFC 7

APPEAL – application for preliminary discovery O 15A Federal Court Rules – costs order – applicant at trial sought leave to discontinue – leave refused – application at first instance dismissed as applicant tendered no evidence COSTS – whether appellant should pay certain costs of proceedings – whether discovery by appellant provided the respondent with sufficient information to determine whether to pursue its causes of action – whether primary judge erred in principles applied to dismissal of proceedings – whether primary judge misapprehended relevant facts to be considered when making costs orders Federal Court Rules, O 15A rr 3, 6 and 12 White v Overland [2001] FCA 1333 cited Oshlack v Richmond River Council (1998) 193 CLR 72 cited Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 cited CON MANIOTIS, TASTE MASTER PTY LTD (ACN 066 595 944), ANDREW FOTHERINGHAM AND BRETT COPPING v J H LEVER & CO PTY LTD (ACN 008 220 666) SAD 63 OF 2005 FINN, EMMETT & BENNETT JJ 17 FEBRUARY 2006 MELBOURNE (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 63 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CON MANIOTIS

FIRST APPELLANT

TASTE MASTER PTY LTD (ACN 066 595 944)

SECOND APPELLANT

ANDREW FOTHERINGHAM

THIRD APPELLANT

BRETT COPPING

FOURTH APPELLANT

AND: J H LEVER & CO PTY LTD (ACN 008 220 666)

RESPONDENT

JUDGE: FINN, EMMETT AND BENNETT JJ

DATE OF ORDER: 17 FEBRUARY 2006

WHERE MADE: MELBOURNE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. Order 3 of the orders made on 21 March 2005 be varied to read: The first, second and third respondents pay to the applicant its costs of the application made on 13 October 2003 as amended on 26 October 2004 from 18 September 2004 until 10 November 2004. 3. Order 4 of the orders made on 21 March 2005 be set aside and the following order be substituted for it: The applicant pay the costs of the first, second and third respondents from 11 November 2004 to 7 March 2005. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.