Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006

FEDERAL COURT OF AUSTRALIA

Australasian Performing Rights Association Limited v Marlin [1999] FCA 1006

PRACTICE & PROCEDURE – circumstances where a lump sum costs order was appropriate – power to vary earlier order contemplating taxation of costs. Federal Court Rules, Order 62 r 4(2)(c)

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 followed Leary v Leary [1987] 1 All ER 261 applied Auspine Ltd v Australian Newsprint Mills Limited [1999] FCA 673 referred to Emanuele v Dau (1996) 133 FLR 312 followed AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMITED v MARLIN & ANOR NG 736 of 1998 Burchett J 8 July 1999 Sydney

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION

NEW SOUTH WALES DISTRICT REGISTRY NG 736 of 1998

BETWEEN: AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMITED

Applicant

AND: RICHARD JOSEPH MARLIN

First Respondent

SOUTH LISMORE FIT FOR ALL PTY LTD

Second Respondent

JUDGE: BURCHETT J

DATE: 8 JULY 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 In this matter, on a previous occasion, I granted injunctive relief. I did so on evidence, but in the absence of the respondents who, at no stage, have appeared, although served and notified both of that hearing and of the present hearing. I am satisfied the respondents have had adequate notice. On the earlier occasion, I stood over questions of damages, while granting injunctive relief and making, in general terms, an order that the respondents pay the costs. 2 What I am now asked to do, in order to bring this matter to a conclusion, is to vary the costs order previously made to order the payment of a lump sum in respect of costs, the applicant being willing to forego its claim for damages, seeking the lump sum costs instead. There is authority, in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, that the previous making of an order for costs in general terms is no bar to a subsequent order effectively varying that by ordering the payment of a lump sum of costs. 3 Adequate evidence has been placed before me upon which I am fully satisfied that the lump sum sought is justified, and indeed is substantially less than the amount at which costs might be expected to be taxed if I confined the relief to a costs order in general terms. In the Beach Petroleum case, and in a number of other cases to which I have been referred, Leary v Leary [1987] 1 All ER 261, Auspine Ltd v Australian Newsprint Mills Limited [1999] FCA 673 at paragraph 11 and Emanuele v Dau (1996) 133 FLR 312, the power which I have under Order 62 rule 4(2)(c), and the power conferred by equivalent rules in the United Kingdom and the Australian Capital Territory, have been described as powers particularly suited to complex litigation, where the costs of taxing a bill might be quite considerable and the delay and inconvenience involved might also be considerable. However, the rule is in general terms, and the power is plainly not limited to cases of that kind. In Leary v Leary at 265, Lord Justice Purchas, delivering the judgment of the Court of Appeal, referred to "the unlimited discretion" conferred by Order 62 rule 9 of the English rule with which the court was there concerned, and he qualified that only by saying that the discretion must be exercised in a judicial manner. In Emanuele, Higgins J said (at p 319): "Thus in my view where a court has a discretion whether or not to order taxation of costs, it might choose to fix a lump sum where the matter is more conveniently so dealt with whether by reason of the relative simplicity of the matter or, conversely, by the enormity of it." 4 I am quite satisfied that the view expressed by Higgins J, if I may respectfully say so, is correct, and that I should follow it. In this case it is rather the straightforwardness of the case than any complexity which leads me to think that it is entirely appropriate to save the parties the difficulties and inconvenience, and added expense, of a taxation. Indeed, the rules of this Court, some years ago, were specifically amended in order to encourage parties, even in cases where the Court had ordered taxation of costs, to accept a lump sum assessment rather than proceed to taxation. 5 The sum put to me of $5932.80 having, as I have already said, been evidenced in a manner that I find satisfactory, I now make an order, amending the order I made before to the extent necessary, that the respondents pay the sum of $5932.80 as the applicant's assessed costs. I otherwise dismiss the action. 6 I do not know that it is necessary to confirm the injunctive orders, but I do so to make it quite clear that the dismissal of the action, of course, is not intended to affect the injunctive orders, which stand as final. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.