Australian Competition & Consumer Commission v Boral Ltd [1999] FCA 663

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Boral

Ltd [1999] FCA 663

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION V BORAL LIMITED

VG 79 OF 1998 HEEREY J 21 MAY 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 79 of 1998

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: BORAL LIMITED

(ACN 000 051 696)

and

BORAL BESSER MASONRY PTY LTD

(ACN 000 223 718)

Respondents

JUDGE: HEEREY J

DATE: 21 MAY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondents pay, on a solicitor and own client basis, the costs which Rocla Limited incurred in making non-party discovery in accordance with the orders of this Court dated 10 February 1999, including costs relating to preparation of submissions. Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 79 of 1998

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: BORAL LIMITED

(ACN 000 051 696)

and

BORAL BESSER MASONRY PTY LTD (ACN 000 223 718)

Respondents

JUDGE: HEEREY J

DATE: 21 MAY 1999

PLACE: MELBOURNE

RULING 1 The respondents and Rocla Limited have filed written submissions dated 24 February 1999 and 4 March 1999 respectively. I incorporate those submissions by reference. I note that the respondents do not contend that there is no jurisdiction to order costs on a solicitor and own client basis, as sought by Rocla. 2 It seems to me only basic fairness that a non-party, who has neither instigated litigation nor engaged in conduct which has provoked another to litigate, should not be out of pocket. Put another way, it does not seem reasonable that a non-party should be effectively compelled by Court order to subsidise litigation in which it has no interest. 3 I agree with Rocla's submission that the public interest in encouraging non-parties to make as full and complete discovery as possible will be served if these parties are aware that their legal costs will be recoverable. 4 I will order that the respondents pay, on a solicitor and own client basis, the costs of Rocla incurred in making non-party discovery, including costs relating to preparing its submissions. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.