Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No 2) [2007] FCA 903

FEDERAL COURT OF AUSTRALIA

Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No 2) [2007] FCA 903

COSTS – indemnity costs – application by respondent for indemnity costs – where applicant failed to comply with orders of Court requiring applicant to file certain documents in preparation for trial – where respondents brought notice of motion seeking orders in relation to applicant's non-compliance – where commencement of trial adjourned – where applicant's failure to file documents the principal reason for adjournment of trial – circumstances in which Court may vary ordinary rule as to costs – whether applicant's conduct warrants special order as to costs. COSTS – application for costs to be paid before conclusion of principal proceeding – whether appropriate to depart from general rule in O 62, r 3(3). PRACTICE AND PROCEDURE – guillotine orders – where respondents seek order pursuant to O 35A that proceedings be stayed or dismissed if applicant does not comply with another order of Court – whether such order appropriate in circumstances – relevant principles. Held: applicant's failure to comply with orders of Court do not amount to misconduct – applicant's conduct does not warrant special order as to costs – costs to be paid on a party and party basis – no inference that applicant's failure to comply with orders part of a delaying strategy – no reason to order payment of costs before conclusion of principal proceeding – not appropriate circumstances for making of guillotine order – respondents' application for order pursuant to O 35A dismissed. Federal Court of Australia Act 1974 (Cth)s 43 Trade Practices Act 1974 (Cth) Federal Court Rules O 10, r 7, O 35, rr 2, 3, O 62 r 3 Colgate Palmolive v Cussons (1993) 118 ALR 248 referred to Fisher v RAFCORP (WA) (1995) 57 FCR 1 referred to Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) [2007] FCA 489 referred to Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 referred to Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 3 May 1991) referred to Wilcox, Re; Ex Parte Venture Industries Pty Ltd (1996) 141 ALR 727 referred to JIANSHE SOUTHERN PTY LTD (ACN 007 031 905) v TURNBULL COOKTOWN PTY LTD (ACN 069 894 275) AND GRAEME ELLIS TURNBULL VID 103 OF 2006