FEDERAL COURT OF AUSTRALIA ACCC v Multigroup Distribution (No. 2) [2002] FCA 251 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v MULTIGROUP DISTRIBUTION SERVICES PTY LTD and OTHERS No Q 157 of 2001 SPENDER J BRISBANE 14 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 157 OF 2001 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: MULTIGROUP DISTRIBUTION SERVICES PTY LTD ACN 001 227 890 FIRST RESPONDENT JOHN O'NEILE SECOND RESPONDENT MALCOLM ROBERTS THIRD RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 14 MARCH 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: Order number 2 of the orders pronounced on 26 February 2002 be varied so that it reads: "2. The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed, including any costs occasioned by the necessity to re-plead." 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 Q 157 OF 2001 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: MULTIGROUP DISTRIBUTION SERVICES PTY LTD ACN 001 227 890 FIRST RESPONDENT JOHN O'NEILE SECOND RESPONDENT MALCOLM ROBERTS THIRD RESPONDENT JUDGE: SPENDER J DATE: 14 MARCH 2002 PLACE: BRISBANE FURTHER REASONS FOR JUDGMENT 1 On 26 February 2002 I gave reasons ex tempore for the making of orders in relation to a claim by the third respondent to strike out the statement of claim as against him. These further reasons for judgment are directed to the Court orders that are recorded in respect of those reasons, as follows: "1. The amended statement of claim as against the third respondent be struck out. 2. The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed. 3. Any fresh statement of claim as against the third respondent be filed within four weeks of today." 2 Before formally pronouncing my reasons ex tempore, I said (at page 7 of the extract of transcript of the hearing on 26 February 2002): "…I will hear you, Mr Peden [counsel for ACCC], in relation to costs, but the applicants on the motion should have their costs of the motion, and they should have the costs of pleading again to the statement of claim that you will - - - MR PEDEN: Costs thrown away. HIS HONOUR: Well, it really is the costs – yes, the costs thrown away by the necessity to re-plead. MR PEDEN: If they end up with effectively the same pleading, then, there may not be any costs thrown away. That's a question for taxation, obviously. …" And later I said to Mr Kelly, counsel for the third respondent: "So you should have the costs of the motion, the costs of and incidental to the motion, including any costs occasioned by the necessity to re-plead. MR KELLY: Thank you, your Honour." 3 In those circumstances, the Court orders that the order number 2 of the orders pronounced on 26 February 2002 be varied so that it reads: "The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed, including any costs occasioned by the necessity to re-plead." I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 14 March 2002 Counsel for the Applicant: Mr John Peden Solicitor for the Applicant: Australian Government Solicitor Counsel for the 1st Respondent: Dr A.J. Greinke Solicitor for the 1st Respondent: Butts Barclay as Town Agents for Gillis Delaney Brown Counsel for the 3rd Respondent Mr D.A. Kelly Solicitor for the 3rd Respondent Hopgood Ganim Date of Hearing: 26 February 2002 Date of Judgment: 14 March 2002