FEDERAL COURT OF AUSTRALIA McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd [2001] FCA 1221 McCALLUM & CO PTY LIMITED ACN 000 054 491 v ALLEN MANUFACTURING COMPANY PTY LIMITED ACN 001 617 643 and ALAN GEORGE HARPER N 1059 OF 1999 GYLES J SYDNEY 19 JULY 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1059 OF 1999 BETWEEN: McCALLUM & CO PTY LIMITED ACN 000 054 491 APPLICANT AND: ALLEN MANUFACTURING COMPANY PTY LIMITED ACN 001 617 643 FIRST RESPONDENT ALAN GEORGE HARPER SECOND RESPONDENT JUDGE: GYLES J DATE OF ORDER: 19 JULY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's costs of the proceedings up to and including 31 May 2001, in respect of which orders were made on 31 May 2001, be taxed and payable by the respondents forthwith conditional upon the applicant satisfying the respondents or, in default, the Deputy Registrar of the New South Wales Registry of the Court, that any amount paid for costs will be repaid in the event of an appeal succeeding. 2. The respondents pay the applicant's costs of the notice of motion filed 13 July 2001. 3. The proceedings be stood over for further directions to a date fourteen days after the hearing and determination of proceeding N 958 of 2001. 4. Liberty to apply on three days' notice. 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 N 1059 OF 1999 BETWEEN: McCALLUM & CO PTY LIMITED ACN 000 054 491 APPLICANT AND: ALLEN MANUFACTURING COMPANY PTY LIMITED ACN 001 617 643 FIRST RESPONDENT ALAN GEORGE HARPER SECOND RESPONDENT JUDGE: GYLES J DATE: 19 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT (EX TEMPORE) 1 This is an application by the respondents in these proceedings for an order that costs which had previously been ordered to be paid be taxed and payable forthwith. The costs in question relate to the final disposition of the question of liability and certain relief, including injunctive relief. This order is only necessary because there is to be a further hearing on damages. In my view, an order of the kind envisaged should follow as a matter of course where the substance of the matter has been determined as it has in this case. 2 Two matters are put against that result. The first is that there is an appeal on foot which may be heard in November of this year and it is submitted that the applicant has not shown that it could repay any costs which it receives in the meantime if the appeal is successful. That is really an indirect application for a stay pending appeal. There is no occasion, in my view, to take the ordinary fruits of victory away from a successful party but it seems to me that, under all the circumstances, if I make the order sought it should be conditional upon the applicant satisfying either the respondents or, in default, the Registrar, that the applicant has the capacity to repay. If necessary, I have in mind the provision of a bond or some such thing. That should be done, of course, when the amount is known. 3 The other basis put forward is the effect of O 62, r 36A of the Federal Court Rules. It is submitted that, because there is an outstanding assessment of damages, those damages may well be less than $100,000 and that the effect of O 62, r 36A would then come into play. I have been referred to several authorities. The one which most directly relates to the matter is Australasian Performing Right Association Ltd v Pashalides [2000] FCA 1815, a decision of Moore J, in which his Honour appears to hold that the rule in question applies even where relief such as an injunction is granted. 4 This is, in my view, a controversial matter. My initial impression would be contrary to the opinion of his Honour, but I do not think it is necessary to come to a final view about that because, if the rule were applicable, I would order that it should not apply in the present circumstances. First of all, the substantive relief sought has been granted and damages, whilst no doubt not unimportant, is only one aspect of a case such as the present and not, I suggest, the most important aspect. Secondly, the matter was both prepared and presented in a perfectly conventional manner with no waste of costs as far as I could see. In my view, the existence of a damages claim did not materially affect the evidence which was required to be tendered on this hearing. I therefore take the view that, in substance, the order sought should be granted but should be conditional as I have indicated. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 4 September 2001 Counsel for the Applicant: J Baird Solicitor for the Applicant: Pricewaterhouse Coopers Legal Counsel for the Respondent: SJ Goddard Solicitor for the Respondent: Murphy & Maloney Date of Hearing: 19 July 2001 Date of Judgment: 19 July 2001