Nine Films & Television Pty Limited v Ninox Television Limited [2006] FCA 1046

FEDERAL COURT OF AUSTRALIA

Nine Films & Television Pty Limited v Ninox Television Limited [2006] FCA 1046 COSTS – Application for costs to be fixed rather than taxed – respondents applied for ajournment at hearing – dismissed - respondents had notice of amount claimed for four months prior to hearing –discretion of Court to award lump sum – relevant factors to consider – principles to be applied in fixing quantum of lump sum. Federal Court Rules 0 62 r 4(2)(c) and r 26 Beach Petroleum NL Johnson (1995) 57 FCR 119 Harrison v Schipp (2002)54 NSWLR 738 Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 Donohoe v Britz (No. 2) (1904) 1 CLR 662 Sparnon & Ors v Apand Pty Ltd [1998] FCA 164 NINE FILMS & TELEVISION PTY LTD (ACN 066 040 024) AND NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407) v NINOX TELEVISION LIMITED (FORMERLY KNOWN AS NINOX FILMS LIMITED), TELEVISION NEW ZEALAND LIMITED AND JOHN CHARLES McEWEN NSD 1820 OF 2004 TAMBERLIN J SYDNEY 11 AUGUST 2006 IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 1820 OF 2004

BETWEEN: NINE FILMS & TELEVISION PTY LIMITED

ACN 066 040 024

FIRST APPLICANT

NINE NETWORK AUSTRALIA PTY LTD

ACN 008 685 407

SECOND APPLICANT

AND: NINOX TELEVISION LIMITED (FORMERLY KNOWN AS NINOX FILMS LIMITED)

FIRST RESPONDENT

TELEVISION NEW ZEALAND LIMITED

SECOND RESPONDENT

JOHN CHARLES McEWEN

THIRD RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 11 AUGUST 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The costs of the applicants be fixed at an amount of $650,000 pursuant to O 62 r 4(2)(c). Of the total amount, the costs payable by the first and third respondents pursuant to Order 4 of the costs order made 30 September 2005 are fixed at a gross sum of $487,500. Costs payable by the first respondent pursuant to Order 5 made 30 September 2005 are fixed at a gross sum of $162,500. 2. Pursuant to O 62 r 26, the applicants are granted leave to discontinue the proceedings insofar as it relates to the applicants' claims for pecuniary relief, with no further or other orders as to costs. 3. The respondents are to pay the costs of this application. 4. The amount of $100,000, and such interest as has accrued on that sum, which is held in the joint bank account of Dale Francis Cliff and Michael John Williams pursuant to the order made by the Court on 7 June 2005, is to be released to the applicants for the purpose of payment of Nine's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA