r JUDGMENT No. AAAS onsen IN THE FEDERAL COURT OF AUSTRALIA ) - - ) : ; NEW SOUTH WALES DISTRICT REGISTRY ) _ ° Nos G 246 of 1987 ) GENERAL DIVISION ) - Between: HELKIT PTY.LIMITED Applicant and: THE BUILDING WORKERS CORAM: PLACE: DATE: I make INDUSTRIAL UNION OF AUSTRALIA First Respondent THE BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA A.C.T. BRANCH Second Respondent SAM SCOTT Third Respondent Einfeld J. Sydney 11 September 1987 MINUTE OF ORDER no order as to costs in these proceedings. " RECENVED od 14 SEP 1987 ERAL GOURT OF FED AUSTRALIA PRINCIPAL REGISTRY eer ee een a IN THE FEDERAL COURT OF AUSTRALIA ) 'NEW SOUTH WALES DISTRICT REGISTRY. ) No. G 246 of 1987 ~ - ) GENERAL DIVISION ) Between: HELKIT PTY.LIMITED Applicant - and: THE BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA First Respondent THE BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA A.C.T. BRANCH Second Respondent SAM SCOTT Third Respondent CORAM: Einfeld J. PLACE: Sydney DATE: 11 September 1987 REASONS FOR JUDGMENT The matter in issue in this case was an application under section 45D (1) of the Trade Practices Act 1974 ("the Act") for orders by way of injunctions that the respondents be restrained from (a) "giving effect to or enforcing any ban on the provision by the applicant .... of goods and services" in relation to bricklaying work to be performed in the Australian Capital Territory in May 1987; and — ae atts wae " Se eeeel an a eeennenenn ne "oO essa Gece oo (b) aiding and abetting this conduct or being otherwise relevantly involved in thé appropriate statutory sense. : ~ The affidavit filed with the application suggests that- the events which gave rise to it all occurred on 26, 27 and 28 May-1987. The dispute was also crystallised in a letter to the applicant of 29 May 1987 written by two building contractors and in a letter from the applicant's solicitor to the second respondent of 4 June 1987. On 5 June, in the light of these developments, the applicant corporation applied to Justice Burchett for leave to serve short notice of the application. This was granted and the return date given was 2.15 pm on 10 June. On that day the matter came before me and a hearing date was fixed for 22 July upon the giving of undertakings by all parties which were contained in short minutes of orders signed by their counsel. Although the undertakings were expressed in terms of being both inter partes as well as to the Court, I then informed counsel that in my view it was inappropriate that these undertakings should be given to the Court at all. I said then that it did not seem to me that a breach of such consent undertakings would be an appropriate basis for contempt proceedings if they should happen to be broken. However, in view of the delicacy of the negotiations then under way between the parties, I did not disturb the agreement reached and the undertakings were duly noted. At the hearing on 22 July 1987, I was advised that the parties had reached agreement on the total proceedings and was asked to note by consent that the undertakings previously given were continued as a condition of the proceedings otherwise being dismissed. I made an order in accordance with that agreement and noted the continuation of the undertakings. eri aceres 8 The applicant applied for costs of-the proceedings which the respondent opposed. The applicant's submission was that but for the failure of the second respondent to give an undertaking to lift its existing ban on the particular building operations in question pursuant to the letter of. 4 June from the applicant's solicitor to the second respondent, the proceedings would never have been commenced.- The failure of the second respondent to respond positively to that request, so the applicant says, leads to the conclusion that the proceedings were reasonably instituted. The applicant also submits that in substance it has achieved by way of undertakings the relief sought in the application and that in reality costs should follow the event. The application for costs is opposed on the part of the respondents on the grounds that there have been neither admissions nor findings on any relevant question of fact or law by any one of the respondents, that on the evidence submitted by the applicant, the dispute arose out of a genuine bona fide matter of contention, and that the respondents hada good defence to the section 45D (1) application under section 45D (3). The respondents point out that the evidence submitted by the applicant does not suggest any relevant conduct by the first respondent at all and that the second respondent is not a legal person who can be sued or against whom any orders can be made. These last submissions, which have not been disputed, are entitled to weight. Where a party chooses to resolve its litigation by consent, without any admission on any relevant question of fact or law, and without any evidence ox findings suggestive that the party was entitled to any orders of the court at all, it would be unusual to award costs. That is pe a — aa ep eae er moe a ee Pi eatery aunt eo eo pes " woe tern er eg re precisely the situation here. I cannot accept merely from the . settlement atself or by a statement from the bar table-that the consent arrangements which brought this litigation to an end were constructed on the basis that any one party had or could have proved a case against any other party. There is simply no_."basis upon which, on- the settlement reached, a conclusion can be drawn as to the outcome in substance of the litigation launched. Nor can the matter be determined by taking refuge in a finding of the reasonableness of the applicant's action in commencing the proceedings. On the material available to me, no finding can be made as to whether it was or was not reasonable to commence the proceedings, amongst other reasons because I do not know whether, for example, the undertakings which were given on 10 June could have been obtained by that date on the basis of negotiations between the parties, as apparently took place shortly after the litigation was launched. For these reasons, it is my view that the proper result in this case is that each party should bear its own costs. I therefore make no order as to the costs of these proceedings. Wo. ea a i iit Sea ee a v Counsel and Solicitors. for the Applicant Counsel and Solicitors for the Respondents Date of Hearing Date of Judgment Mr. McClintock instructed: by : Messrs. Dunhill Morgan Solicitors, Sydney Mr. S. Rothman instructed by Messrs. Taylor & Scott Solicitors, Sydney 22 July 1987 11 September 1987 aaa - sor ne poe