FEDERAL COURT OF AUSTRALIA Sita Qld Pty Ltd v State of Queensland [2000] FCA 1712 SITA QLD PTY LTD (ACN 070 097 219) v STATE OF QUEENSLAND QG 95 OF 1998 DOWSETT J 13 NOVEMBER 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 95 OF 1998 BETWEEN: SITA QLD PTY LTD (ACN 070 097 219) APPLICANT AND: STATE OF QUEENSLAND RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 13 NOVEMBE 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicant's motion for leave to lead further evidence be refused. 2. The applicant pay the respondent's costs of the proceedings up to and including 20 June 1999 on a party and party basis, and that thereafter the applicant pay the respondent's costs of the proceedings on an indemnity basis. 3. In both cases, there are to be excluded from those orders costs disposed of by previous orders of the Court and any other costs disposed of by the agreement, being exhibit JLP4 to the affidavit of John Lawrence Prior filed herein today. 4. The costs of the applicant's motion be included in the respondent's costs and be disposed of in the way indicated. 5. The operation of the order for costs be suspended for a period of seven days. 6. The parties have leave to make application for any further findings of fact within seven days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 95 OF 1998 BETWEEN: SITA QLD PTY LTD (ACN 070 097 219) APPLICANT AND: STATE OF QUEENSLAND RESPONDENT JUDGE: DOWSETT J DATE: 13 NOVEMBER 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 I am asked to make orders as to the costs of this action. It has been quite complex. The application and initial statement of claim raised a large number of separate claims, some of which have been previously disposed of by orders of the Court. The only cause of action to be fully argued and determined concerns an alleged agreement entered into on 20 December 1997. The applicant has failed in those proceedings. The matter is further complicated by the fact that on 10 May 1999 an offer was made by the respondent to dispose of all proceedings upon a basis which was certainly less favourable to it than the orders which have subsequently been made and are to be made today, particularly as to costs. The order should reflect these considerations. 2 As the respondent has been successful in the proceedings, the normal order, were there no other circumstances to be taken into account, would be that the respondent have the costs of them. From that order must be excluded the costs which have already been disposed of by various orders of the Court. Some parts of the proceedings were discontinued by agreement and orders as to costs agreed. It may be, however, that there are some other costs disposed of by that agreement but not reflected in any order. In the event that there are any other costs disposed of by that agreement, they ought also be excluded from the order which I am about to make. This means that the order would, subject to matters arising from the letter of 10 May 1999, be that the applicant pay the respondent's costs of the proceedings, excluding all costs which have previously been disposed of by order or which are the subject of the agreement contained in exhibit JLP4 to the affidavit of J.L. Prior filed today. 3 As to the letter of 10 May 1999, the respondent offered to settle the matter upon the basis that the applicant discharge the respondent from any further liability and that the respondent meet its own costs of the proceedings. A proposed deed was annexed to the letter. In par 1(c) there is a proposed undertaking as to the way in which the applicant would thereafter conduct its bus services between Brisbane and the Gold Coast. The applicant had previously claimed to be entitled to conduct its bus service in a way which, as the respondent asserted, was inconsistent with the law, and it sought to establish such right in these proceedings. The proposed undertaking reflected the respondent's view on this matter. The applicant's claim to the contrary was subsequently discontinued pursuant to the agreement to which I have referred. Thus it is clear that the applicant has abandoned its assertion. In those circumstances the offer made in the letter of 10 May would have disposed of these proceedings on a basis more favourable to the applicant than in fact has been the case, having regard both to orders previously made pursuant to the agreement and those to be made today. 4 In the letter of 10 May the respondent indicated that in the event that the offer was not accepted, it would apply for costs on an indemnity basis. In the circumstances it is appropriate that the respondent have costs on that basis from the day upon which the offer to settle expired, 20 June 1999. 5 The order for costs will therefore be that the applicant pay the respondent's costs of the proceedings up to and including 20 June 1999 on a party and party basis, and that thereafter the applicant pay the respondent's costs of the proceedings on an indemnity basis. In both cases, there are to be excluded from those orders, costs disposed of by previous orders of the Court and any other costs disposed of by the agreement, being exhibit JLP4 to the affidavit of John Lawrence Prior filed herein today. 6 There was a motion this morning for leave to lead further evidence. It was unsuccessful. The costs of that motion should be included in the respondent's costs and be disposed of as I have indicated. 7 The applicant has indicated that it might wish to make further submissions concerning costs when it has read the reasons. I think that unlikely, but to permit that, and so that I can consider such submissions and perhaps vary the order which I have proposed, I will suspend its operation for a period of seven days. 8 I will also give the parties liberty to apply for any further findings of fact within seven days. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 24 November 2000 Counsel for the Applicant: Mr M Conrick Solicitor for the Applicant: Freehills Counsel for the Respondent: Mr T W Quinn Solicitor for the Respondent: Crown Law Date of Hearing: 13 November 2000 Date of Judgment: 13 November 2000