FEDERAL COURT OF AUSTRALIA Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 1039 Costs – whether costs ought to be paid on an indemnity basis – whether respondent's solicitors ought to have brought error to the attention of the applicant's solicitors as a matter of professional courtesy Statutes Fair Trading Act (Qld) (1989) Cases Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Cited EMIRATES PARK PTY LTD V MAGIC MILLIONS SALES PTY LTD Q43 of 2002 KIEFEL J 22 AUGUST 2002 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q43 OF 2002 BETWEEN: EMIRATES PARK PTY LTD APPLICANT AND: MAGIC MILLIONS SALES PTY LTD FIRST RESPONDENT STEWART RAMSAY SECOND RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 22 AUGUST 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicant pay each of the first and second respondent's costs thrown away by the amendment to its statement of claim. 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 Q43 OF 2002 BETWEEN: EMIRATES PARK PTY LTD APPLICANT AND: MAGIC MILLIONS SALES PTY LTD FIRST RESPONDENT STEWART RAMSAY SECOND RESPONDENT JUDGE: KIEFEL J DATE: 22 AUGUST 2002 PLACE: BRISBANE REASONS FOR JUDGMENT (Costs) 1 In my reasons for judgment of 9 August 2002, on the application for leave to amend the statement of claim, I expressed the view that an order for the costs of that application in favour of either the applicant or the first respondent did not seem appropriate. Neither party seeks a different order with respect to the application and its hearing, and the applicant has conceded that it must pay the costs of both respondents thrown away by reason of the amendment. The first respondent however seeks an order that those costs be taxed and paid on an indemnity basis. 2 The first respondent points out that the applicant abandoned its reliance on the claim originally brought for breaches of the Fair Trading Act (Qld) (1989). It thereby accepted that the claim was futile. It is appropriate to consider indemnity costs "whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401 [15]. 3 The original statement of claim pleaded the wrong legislation. So much is conceded. It has not however been suggested that the first respondent's legal advisors brought this to the attention of the applicant's advisers, as professional courtesy and the interest of both parties requires. If they had done so, and the applicant nevertheless determined to pursue the claim the first respondent might have had some claim to indemnity costs. It does not suggest that this was done. I do not think the circumstances are such that an order for indemnity costs is appropriate. 4 The only order as to costs on the motion will be that the applicant pay both respondents' costs thrown away by the amendments. I note that the second respondent seeks no further order with respect to the hearing, at which it took an observer's role. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice . Associate: Dated: 22 August 2002 Counsel for the Applicant: Mr P E Hack SC and Mr A Musgrave Solicitor for the Applicant: Hopgood Ganim Counsel for the First Respondent: Mr A Crowe SC and Mr A Barlow Solicitor for the First Respondent: Hannigans Counsel for the Second Respondent: Mr N Thompson Solicitor for the Second Respondent: Freestone & Kumnick Date of Hearing: 7 August 2002 Date of Judgment: 22 August 2002