Federal Court of Australia
CATCHWORDS COSTS - Recovery of Costs - Indemnity Costs awarded - appeal hopeless and should not have been persisted in - appeal never put in proper form - no arguable issue identified. Federal Court of Australia Act 1976 - s 24(1A), O 52 r 13 2(b) Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers, Western Australian Branch & Anor (Unreported, 19 February 1993) Huntsman Chemical Co Australia Ltd & Anor v International Pools Australia Pty Ltd & Ors (1994-5) NSWLR 242 MARKET SERVICES INTERNATIONAL PTY LTD v NUTRI-METICS (INTERNATIONAL) AUSTRALIA PTY LTD No. VG511 of 1995 No. VG57 of 1993 EINFELD, FOSTER & SACKVILLE JJ 11 OCTOBER 1995 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA ) ) No. VG511 of 1995 VICTORIA DISTRICT REGISTRY ) ) No. VG57 of 1993 GENERAL DIVISION ) BETWEEN:MARKET SERVICES INTERNATIONAL PTY LTD Appellant AND:NUTRI-METICS (INTERNATIONAL) AUSTRALIA PTY LTD Respondent JUDGES MAKING ORDERS: EINFELD, FOSTER & SACKVILLE JJ DATE: 11 OCTOBER 1995 PLACE: MELBOURNE MINUTE OF ORDERS THE COURT ORDERS THAT: 1.The motion of the appellant for leave to appeal dated 26 May 1995 be dismissed. 2.The notice of appeal dated 26 April 1995 be dismissed. 3.The appellant pay the respondent's costs in accordance with the order proposed by Justice Foster. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) No. VG511 of 1995 VICTORIA DISTRICT REGISTRY ) ) No. VG57 of 1993 GENERAL DIVISION ) BETWEEN:MARKET SERVICES INTERNATIONAL PTY LTD Appellant AND:NUTRI-METICS (INTERNATIONAL) AUSTRALIA PTY LTD Respondent CORAM: EINFELD, FOSTER & SACKVILLE JJ DATE: 11 OCTOBER 1995 PLACE: MELBOURNE REASONS FOR JUDGMENT (Extempore) EINFELD J: I agree with the orders proposed. There have now accumulated a significant number of cases in which indemnity costs have been awarded, or have been refused, in reported circumstances and it seems that, if any certainty is to be brought into this area, there will need to come a time when either an appellate Court, or the legislature, may have to address the terms and conditions under which indemnity costs should be awarded, or else the Courts will be in danger of receiving an increasing number of such applications, with a wide variety of principles stated in other judgments as being applicable. This is not a case to attempt to undertake a task of this kind. In any event it may eventually turn out, without any legislative change, that ultimately the only principle that can be properly discerned is that each case will have to be determined upon its own facts in the need to balance the entitlement of the parties to the litigation. The orders proposed by Justice Foster are, in my opinion, appropriate for this case and I agree with them. I certify that this and the preceding one (1) page are a true copy of the reasons for judgment herein of the Honourable Justice Einfeld. Associate: Date: 11 OCTOBER 1995
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