FEDERAL COURT OF AUSTRALIA Apache Northwest Pty Ltd v Newcrest Mining Limited (No 2) [2009] FCAFC 58 PRACTICE AND PROCEDURE – application to vary costs order – whether the parties should be confined to the submissions made during the hearing of the appeal Schmidt v Won [1998] 3 VR 435 Fisse v Secretary, Department of the Treasury (No 2) (2008) 253 ALR 52 APACHE NORTHWEST PTY LTD (ABN 58 009 140 854) v NEWCREST MINING LIMITED (ABN 20 005 683 625) VID 887 of 2008 MOORE, GILMOUR and FLICK JJ 22 May 2009 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 887 of 2008 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APACHE NORTHWEST PTY LTD ABN 58 009 140 854 Applicant AND: NEWCREST MINING LIMITED ABN 20 005 683 625 Respondent JUDGES: MOORE, GILMOUR and FLICK JJ DATE OF ORDER: 22 MAY 2009 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application to vary the costs orders made on 31 March 2009 be dismissed with no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 887 of 2008 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APACHE NORTHWEST PTY LTD ABN 58 009 140 854 Applicant AND: NEWCREST MINING LIMITED ABN 20 005 683 625 Respondent JUDGES: MOORE, GILMOUR and FLICK JJ DATE: 22 MAY 2009 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The successful applicant: see Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 seeks, it seems, an order varying the costs order made by the Full Court on 31 March 2009 to remove any uncertainty about the order applying to its costs in complying with the order requiring preliminary discovery and to provide that those costs be the reasonable costs of complying: Schmidt v Won [1998] 3 VR 435 at 459. Although Flick J, when delivering judgment on behalf of the Full Court, gave the parties liberty to make written submissions on this issue, it does not follow that the Full Court is prepared to reopen the question of costs. We are not. 2 We did not intend that our costs order would cover steps taken by the successful applicant to comply with the order requiring preliminary discovery. It was not a matter that was drawn to our attention at the hearing of the appeal. It should have been: Fisse v Secretary, Department of the Treasury (No 2) (2008) 253 ALR 52. Generally, the time for making submissions on any question in appeal proceedings, including costs, is the time the appeal is heard. While there will be some cases in which some other course is appropriate, this is not one of them. Treating the request for a variation of the order as an application, the application should be dismissed with no order as to costs. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Gilmour and Flick. Associate: Dated: 21 May 2009 Solicitor for the Applicant: Mallesons Stephen Jaques Solicitor for the Respondent: Blake Dawson Date of Judgment: 22 May 2009