a coe JUDGMENT No. 44 7B? rereed IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION wee No. WAG 118 of 1986 BETWEEN: FLOWER DAVIES WEMCO PTY LIMITED Applicant and THE AUSTRALIAN BUILDERS LABOURERS FEDERATED UNION OF WORKERS - WA BRANCH First Respondent THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA Second Respondent THE FEDERATED ENGINE DRIVERS' AND FIREMEN''S UNION Third Respondent. ,57- MINUTE OF ORDER B ~w a Re) = OO JUDGE MAKING ORDER: FRENCH J. E=) 3 S BB cs 1) ~ DATE OF ORDER: 3 FEBRUARY 1988 9 a oe / é WHERE MADE: PERTH WTSI ts THE COURT ORDERS THAT: 1. The respondents are to pay the costs of the claim for interlocutory relief save for the appearances on 27 November 1986 and the morning of 28 November 1986. 2. The costs are to be taxed forthwith and paid independently of the resolution of application. Note: Settlement and entry of orders Order 36 of the Federal Court Rules. the substantive is dealt with in IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION Sew No. WAG 118 of 1986 BETWEEN: FLOWER DAVIES WEMCO PTY LIMITED Applicant and THE AUSTRALIAN BUILDERS LABOURERS FEDERATED UNION OF WORKERS ~ WA BRANCH First Respondent THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA Second Respondent THE FEDERATED ENGINE DRIVERS' AND FIREMEN'S UNION Third Respondent CORAM; FRENCH J. 3 FEBRUARY 1988 EX TEMPORE REASONS FOR JUDGMENT On 3 December 1986 I made an order in these proceedings granting an interlocutory injunction restraining the first and second respondents from giving effect to certain bans affecting the provision of goods or services to the applicant at the premises -of the Australian Institute of Management on the corner of Underwood 'and Birkdale Streets in Floreat Park. of that interlocutory injunction effectively a Lew ee oa Se LE $i 2-2 1-8 Pee gr 2. determined the substance of the application. The conduct which was restrained would have interfered with the lift of two items of equipment on to the roof of the premises in question. The injunction having been granted and complied with, the lift of those two items of equipment took nlace. Apart from the question of damages and costs, the matter appears to be resolved. AS appears from the affidavit of Flizabeth Jane Hollingworth, a solicitor acting for the applicant, the damages that it contends that it suffered amount to approximately $3,300, and it is said that due to the small amount of the damages claimed, the applicant has not pursued matters at trial; indeed, there has been substantially little or no movement on the file since that time. On 7 December last year, the matter came up for mention and I then directed that the question of the costs of the interlocutory injunction be heard today. The applicant seeks the costs of the interlocutory proceedings but this is opposed by the respondent. The respondent rightly points out that the decision taken was based on evidence which might not necessarily be that led at trial and, indeed, I made that point myself 1n the reasons for judgment. The findings of fact are, to the extent that they are based on hearsay evidence or evidence which may not have been tested in cross-examination, provisional, and do not determine issues finally for the purpose of the substantive application. There were criticisms that were made at the time, by counsel for the respondent, of the evidence adduced for the applicant. In the event, however, I applied established criteria to determine that 3. 1t was appropriate to grant an interlocutory injunction; the established criteria being the existence of a serious question to be tr1red and a balance of convenience favouring the grant of the relief sought. Whilst 1t 1s usual to reserve the costs of interlocutory applications nending the outcome of the substantive hearing, there 15 no reason in nrinciple why the costs of the interlocutory proceedings cannot be determined separately; and in this case there are compelling practical reasons for so doing. The principal reason 1s that the interlocutory application has effectively determined the outcome of the proceedings insofar as the restraint imposed upon the respondents' conduct 1s concerned and it would be ludicrous to allow the matter to go to a trial to determine how costs on the interlocutory proceedings should be resolved. The interlocutory injunction was granted on established principles; those principles are neither capricious nor arbitrary; they are predictable. One can say, without engaging, of course, i1n any criticism of the respondents or their advisors, that it 1s possible for a party who is respondent to a claim for interlocutory relief to assess its prospects of success un accordance with those well established criteria; notwithstanding that the evidence upon which the decision may be made may include evidence which would not be admissible at a trial of the action. 4. In my opinion, the interlocutory proceedings which were vigorously opposed by the respondent and resolved against 1t have no attribute which would require a departure in this case from the usual cule, that the costs should fcllew the event, and in the circumstances I propose to order that the respondents should pay the casts of the claim for interlecutory relief. IT would exclude, however, from the ambit of that order the first appearance by the applicant on 27 November 1986 when it attempted to claim its interlocutory relief on an ex parte basis; that was, as I then said, an unjustified attempt and it is not a cost that ought to be borne by the respondents. Nor should the respondents be liable to pay the costs of the appearance on the morning of Friday, 28 November 1986, at which time the applicant sought simply to amend its statement of claim; that again was a matter which should not impose any additional burden upon the respondents. But subject to those two qualifications, I propose to order that the respondents pay the costs of the claim for interlocutory relief. The formal order on the claim for costs 1s that the respondents are to pay the costs of the claim for interlocutory relief save for the appearances on 27 November 1986 and the morning of 28 November 1986. I will make a further order and that is that the costs are to be taxed forthwith and paid independently of the resolution of the substantive application. 5. I certify that the preceding four (4) pages are a true copy of the Peasons for Judqment oF his Honour Justice Prench. -~ _ ; Associate: -pe WU Kw ) ~4 ' Date: 2 fesrarnes Counsel for the Applicant: Ms. E. Hollingworth Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the Respondents: Mr D. Chantler Solicitors for the Respondents: Harman Drake-Brockman Date of Hearing: 3 February 1988 Date of Judgment: 3 February 1988