Collex Waste Management Pty Ltd v Waste Recycling & Processing Service of NSW [1999] FCA 939

FEDERAL COURT OF AUSTRALIA

Collex Waste Management Pty Ltd v Waste Recycling & Processing Service of NSW [1999] FCA 939 COLLEX WASTE MANAGEMENT PTY LIMITED v THE WASTE RECYCLING AND PROCESSING SERVICE OF NEW SOUTH WALES & ANOR NG 878 of 1998 LINDGREN J 25 JUNE 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 878 OF 1998

BETWEEN: COLLEX WASTE MANAGEMENT PTY LIMITED

(ACN 051 316 584)

Applicant

AND: THE WASTE RECYCLING AND PROCESSING SERVICE OF NEW SOUTH WALES

First Respondent

THIESS ENVIRONMENTAL SERVICES PTY LIMITED (ACN 010 725 247)

Second Respondent JUDGE: LINDGREN J

DATE OF ORDER: 25 JUNE 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) The applicant pay the first respondent's costs of the proceeding on a party and party basis until 12 February 1999 and on an indemnity basis after that date. (2) The applicant pay the second respondent's costs of the proceeding on a party and party basis until 21 December 1998 and on an indemnity basis after that date. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 878 OF 1998

BETWEEN: COLLEX WASTE MANAGEMENT PTY LIMITED

(ACN 051 316 584)

Applicant

AND: THE WASTE RECYCLING AND PROCESSING SERVICE OF NEW SOUTH WALES

First Respondent

THIESS ENVIRONMENTAL SERVICES PTY LIMITED (ACN 010 725 247)

Second Respondent

JUDGE: LINDGREN J

DATE: 25 JUNE 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 I published Reasons for Judgment on 11 June 1999 in relation to two motions for summary dismissal, one brought by each respondent. That of the second respondent ("Thiess") was filed on 19 March and that of the first respondent ("WS") was filed on 1 April. The motions were heard together. On each motion I ordered that the proceeding be dismissed. The issue before me today is the question of the costs of the proceeding. I will assume that the Reasons dated 11 June 1999 have been read and will henceforth use the abbreviated forms of reference that I used in those Reasons. 2 In the course of submissions today, Collex and Thiess became at one that Collex should be ordered to pay Thiess's costs on a party and party basis until 21 December 1998 and after that date on an indemnity basis. This concordance between Collex and Thiess means that I need say nothing further in relation to the issue of costs as between those parties. General 3 In relation to WS, Collex submits that the order should be simply that it pay WS's costs of the proceeding on the usual party and party basis. WS on the other hand, submits that the order should be for payment of its costs on a party and party basis up to a certain date and on an indemnity basis after that date. The primary submission for WS is that that date should be 27 November 1998. An alternative fall-back position is that it should be 21 December 1998. 4 On 27 November WS wrote to Collex the letter set out at para 45 of my earlier Reasons for Judgment advising Collex that the Board had nominated Collex as its preferred tenderer, that it appeared that Collex was well placed to secure the necessary contract with the Board, and that discussion should commence between WS and Collex as to Collex's use of the WS Transfer Stations. 5 On 21 December 1998 there was a meeting between representatives of Collex and WS. WS says in relation to that meeting that I should infer that from that time at the latest Collex persisted in the present proceeding knowing that it would be inflicting a considerable amount of unnecessary expense and legal work on WS. In addition, WS submits that I should infer from what happened at the meeting that it, WS, was afraid to move for summary dismissal at an earlier point of time than it did, that is, 1 April 1999. 6 Collex points out that it was only on the return date of Thiess's motion for summary dismissal, 1 April last, that WS indicated that it also wished to move for summary dismissal, and that it, WS, filed its notice of motion later that day pursuant to directions made at the hearing that morning. In sum, Collex relies upon the delay of WS until 1 April in moving for summary dismissal. 7 I think that Collex should be required to pay WS's costs on an indemnity basis from at least 1 April when WS's notice of motion was filed. The position in relation to the earlier period is not so clear. I do not think that Collex should be required to pay the costs on an indemnity basis from as early as 27 November as I do not think it follows from the mere writing of the letter by WS to Collex that day that Collex should necessarily have realised immediately that bona fide negotiations were taking place and that its case was hopeless. The question which I do not find altogether straightforward is whether Collex should be required to pay WS's costs on an indemnity basis from 21 December 1998. Against Collex is the fact that its representative, Mr Dean, agreed at the meeting on that day that if this litigation was not then and there suspended, a considerable amount of unnecessary expense and legal work was likely to be involved. He said, however, that because of what he described as a tight time frame set up by the Board, he was reluctant to suspend litigation until arrangements for Collex to have access to the WS Transfer Stations were further advanced. 8 Against WS is the fact that it seems to have acquiesced in that position. It is put on behalf of WS that it cannot reasonably be expected to have filed immediately a notice of motion for summary dismissal. Even on Collex's case, the negotiations for access became further advanced fairly rapidly. According to my earlier Reasons for Judgment, there was a further meeting between representatives of Collex and WS on 27 January 1999 and on 9 February 1999, WS forwarded to Collex a draft deed providing for Collex to have access to the WS Transfer Stations. 9 On 12 February 1999 Collex raised points in relation to the draft. There was a further meeting of representatives of WS and Collex on 17 February. On 24 February, Collex proposed further amendments, and on 15 March it forwarded to WS a note of yet further changes it wanted to discuss. 10 The question of costs is, of course, within the discretion of the Court and the principles in relation to indemnity costs have been discussed in many cases. Perhaps the most recent of these is Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641. There is an element of compromise in what I propose to do which is to order that Collex pay WS's costs on an indemnity basis from 12 February 1999 being the latest time by which I think it should have been quite clear to Collex that its case was hopeless and that it should not proceed any further. Conclusion 11 For the above reasons, the Court orders that: (1) The applicant pay the first respondent's costs of the proceeding on a party and party basis until 12 February 1999 and on an indemnity basis after that date. (2) The applicant pay the second respondent's costs of the proceeding on a party and party basis until 21 December 1998 and on an indemnity basis after that date. I certify that this and the preceding eleven (11) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.