FEDERAL COURT OF AUSTRALIA People Telecom Limited v Phatchat Pty Limited [2007] FCA 1566 PEOPLE TELECOM LIMITED (ACN 091 714 699) v PHATCHAT PTY LIMITED (ACN 100 266 000) and PETER JAMES KELLY; PHATCHAT PTY LIMITED (ACN 100 266 000) and PETER JAMES KELLY v PEOPLE TELECOM LIMITED (ACN 091 714 699) and SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208); BODRUM PTY LIMITED (ACN 070 141 945) and PETER JAMES KELLY v PEOPLE TELECOM LIMITED (ACN 091 714 699) and SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208) NSD 2044 OF 2006 GYLES J 9 OCTOBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2044 OF 2006 BETWEEN: PEOPLE TELECOM LIMITED (ACN 091 714 699) Applicant AND: PHATCHAT PTY LIMITED (ACN 100 266 000) First Respondent PETER JAMES KELLY Second Respondent AND BETWEEN: PHATCHAT PTY LIMITED (ACN 100 266 000) First Cross-Claimant on the First Cross-Claim PETER JAMES KELLY Second Cross-Claimant on the First Cross-Claim AND: PEOPLE TELECOM LIMITED (ACN 091 714 699) First Cross-Respondent on the First Cross-Claim SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208) Second Cross-Respondent on the First Cross-Claim and between: BODRUM PTY LIMITED (ACN 070 141 945) First Cross-Claimant on the Second Cross-Claim PETER JAMES KELLY Second Cross-Claimant on the Second Cross-Claim AND: PEOPLE TELECOM LIMITED (ACN 091 714 699) First Cross-Respondent on the Second Cross-Claim SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208) Second Cross-Respondent on the Second Cross-Claim JUDGE: GYLES J DATE OF ORDER: 9 OCTOBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The cross-claimants uplift from the Court file the second amended first cross-claim and the second amended second cross-claim filed 25 September 2007. 2. The cross-claimants have leave to file a marked up second amended first cross-claim and a marked up second amended second cross-claim in the form circulated on 8 October 2007, on the condition that no claim pursuant to s 46 of the Trade Practices Act 1974 (Cth) can be made in the proceedings without the leave of the Court. 3. The cross-claimants pay the cross-respondents' costs thrown away as a result of the filing of the second amended cross-claims. 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 NSD 2044 OF 2006 BETWEEN: PEOPLE TELECOM LIMITED (ACN 091 714 699) Applicant AND: PHATCHAT PTY LIMITED (ACN 100 266 000) First Respondent PETER JAMES KELLY Second Respondent AND BETWEEN: PHATCHAT PTY LIMITED (ACN 100 266 000) First Cross-Claimant on the First Cross-Claim PETER JAMES KELLY Second Cross-Claimant on the First Cross-Claim AND: PEOPLE TELECOM LIMITED (ACN 091 714 699) First Cross-Respondent on the First Cross-Claim SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208) Second Cross-Respondent on the First Cross-Claim and between: BODRUM PTY LIMITED (ACN 070 141 945) First Cross-Claimant on the Second Cross-Claim PETER JAMES KELLY Second Cross-Claimant on the Second Cross-Claim AND: PEOPLE TELECOM LIMITED (ACN 091 714 699) First Cross-Respondent on the Second Cross-Claim SINGTEL OPTUS PTY LIMITED (ABN 90 052 833 208) Second Cross-Respondent on the Second Cross-Claim JUDGE: GYLES J DATE: 9 OCTOBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter, there are two questions to be determined. The first is the terms upon which an amendment to remove the s 46 claim should be permitted. As to that, it seems to me that the appropriate order is that leave be granted to file the second amended cross-claim, but on terms that no claim pursuant to s 46 can be made in this proceeding without leave of the Court. I should say that it is clear from what has been said, and from the operation of the general law, that a claim outside this case would not be permitted because of the principles underlying Anshun estoppel. 2 The second disputed matter is the issue of costs. It is accepted that there will need to be an order for payment of the costs thrown away by the amendment, but application is made that those costs be taxed and paid forthwith. I am not satisfied that that order should be made. In the usual course, interlocutory orders are not taxed and paid forthwith. It is submitted that this is in a separate category because it really amounts to dropping a discrete and substantive claim for relief, and reference is made to the decision of Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd, (1998) ATPR 41-623 in which an order was made where a discrete portion of a statement of claim was struck out. 3 In my opinion, two things in particular lead to not making the order. The first is that this is a case in which there has been considerable interlocutory debate already (I suspect it may not be the last) and it is much more satisfactory in the end to have all questions of costs dealt with at the one time. Secondly, I am not satisfied that the matters are so discrete as to render the possibility that there could be cross interplay between the various causes of action unlikely or not open. I appreciate that the s 45 case is not put in a way which has a strong overlap with the s 46 case, but it is not at all clear to me that, at the end of the day, the underlying facts would not at least have an overlap which would need to be taken into account when the assessment is made as to what costs are thrown away. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 12 October 2007 Counsel for the Cross-Claimants: Mr JC Giles Solicitor for the Cross-Claimants: Levitt Robinson Counsel for the Applicant/First Cross-Respondent: Mr CA Moore Solicitor for the Applicant/First Cross-Respondent: Ebsworth & Ebsworth Solicitor for the Second Cross-Respondent: Mr P Forbes of Baker & McKenzie Date of Hearing: 9 October 2007 Date of Judgment: 9 October 2007