Committe Interprofesionnel des Vines des Cotes des Provence v Bryce [1999] FCA 1838

FEDERAL COURT OF AUSTRALIA

Comite Interprofesionnel des Vins des Cotes de Provence v Bryce (No 2)

[1999] FCA 1838 COMITE INTERPROFESIONNEL DES VINS DES COTES DE PROVENCE and ANOTHER v STUART ALEXANDER BRYCE and ANOTHER (NO 2) NO. V 452 OF 1994 HEEREY J 17 DECEMBER 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 452 OF 1994

BETWEEN: COMITE INTERPORFESIONNEL DES VINS DES COTES DE PROVENCE AND ANOTHER

Applicants

AND: STUART ALEXANDER BRYCE AND ANOTHER

Respondents

JUDGE: HEEREY J

DATE OF ORDER: 17 DECEMBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: The respondent's motion by notice dated 16 November 1999 is dismissed. 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 V 452 OF 1994

BETWEEN: COMITE INTERPORFESIONNEL DES VINS DES COTES DE PROVENCE AND ANOTHER

Applicants

AND: STUART ALEXANDER BRYCE AND ANOTHER

Respondents

JUDGE: HEEREY J

DATE: 17 DECEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The respondents have filed a notice of motion seeking orders that the order for costs made by Merkel J on 28 October 1996 be vacated or varied and that the said order be replaced or varied by substituting or adding the following: "The applicants pay the respondents' costs of and incidental to the proceedings for the periods from 16 December 1994 to 4 March 1996, and from 10 September 1996 to the date of taxation." 2 The order in question was made after argument before his Honour on 28 October 1996 in these terms: 1. The applicants have leave to discontinue these proceedings. 2. The applicants pay the respondents' costs of the proceedings only to the extent that those costs were increased by including in the proceeding causes of action based on sections 52 and 53 of the Trade Practices Act 1974 and the corresponding provisions of the Fair Trading Act 1990 (Tas) and the cause of action in passing off and to the extent that the said costs were not the subject of the order made by Heerey J as a result of his reasons for judgment herein handed down on 23 August 1996, and that the applicants pay the respondents' costs of today's application. 3 It is plain at the outset that I cannot sit on appeal from another judge's order; also that, given this order was made after argument by counsel, it is not a case where there is some error in making the order so as to attract the operation of the slip rule. I hope I am not compounding problems and in saying the following I am only anxious to try and bring resolution to this matter, which has been hanging around for far too long. What I say is not intended to be a gloss on his Honour's order, which stands as passed and entered as an order of the Court. 4 Subject to all that, it seems to me that, I having ordered on 23 August 1996 that the applicants pay the respondents' costs relating to the trial of questions under O 29 r 2 including reserved costs, Merkel J was faced with a number of alternatives. His Honour could have ordered that, upon the applicants discontinuing, the applicants pay all the respondents' costs. Now, although that would have been open to his Honour, plainly his Honour did not make such an order. The gist of his Honour's order seems to be that the respondents should bear their own costs in relation to the statutory cause of action (apart of course from their costs on the O 29 r 2 trial of separate questions which have already been taxed and paid), but insofar as the respondents' costs were increased because the applicants took the Trade Practices Act and common law claims which they subsequently abandoned, then the respondents should have those costs. 5 The rationale for such an order was that, in a sense, the applicants succeeded on the statutory cause of action because the practical consequence of my judgment was that the respondents would have to cease using the name "La Provence", even though they won the O 29 r 2 question (and got their costs thereon) on what might be called a technical point. I repeat that it is not for me to say whether I agree or disagree with that conclusion. I only mention these matters as an aid to understanding how his Honour's order is to work. 6 So practically speaking from the point of view of taxation, unless of course this can be agreed upon, the respondents would need to show what were the costs which were additionally incurred because they had to deal with the Trade Practices Act and common law causes of action. I think that is all I need say at the moment. For those reasons the notice of motion is dismissed.