FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v PRK Corporation Limited (No 2) [2008] FCA 523 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v PRK CORPORATION LIMITED (FORMERLY KNOWN AS TOLL (PRK) LIMITED) & ORS NSD 1703 OF 2007 SACKVILLE J 18 APRIL 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1703 OF 2007 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: PRK CORPORATION LIMITED (FORMERLY KNOWN AS TOLL (PRK) LIMITED AND ALSO FORMERLY KNOWN AS PATRICK CORPORATION LIMITED AND AS LANG CORPORATION LIMITED) (ACN 008 660 124) First Respondent PATRICK STEVEDORES HOLDINGS PTY LTD (ACN 060 462 919) Second Respondent PATRICK STEVEDORES OPERATIONS PTY LTD (ACN 065 375 840) Third Respondent PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD (ACN 056 292 687) Fourth Respondent PLZEN PTY LTD (ACN 065 905 571) Fifth Respondent DP WORLD HOLDINGS (AUSTRALIA) LIMITED (FORMERLY KNOWN AS P&O AUSTRALIA LIMITED) (ACN 000 282 977) Sixth Respondent DP WORLD AUSTRALIA LIMITED (FORMERLY KNOWN AS P&O PORTS LIMITED) (ACN 000 049 301) Seventh Respondent P&O WHARF MANAGEMENT PTY LTD (ACN 100 737 264) Eighth Respondent AUSTRALIAN AMALGAMATED TERMINALS PTY LTD (ACN 098 458 229) Ninth Respondent CHRISTOPHER CORRIGAN Tenth Respondent DONALD SMITHWICK Eleventh Respondent ANDREW BURGESS Twelfth Respondent TIMOTHY BLOOD Thirteenth Respondent JUDGE: SACKVILLE J DATE OF ORDER: 18 APRIL 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The costs incurred by the parties in relation to the respondents' motions, including the costs of the motion of the tenth respondent, be costs in the cause. 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 1703 OF 2007 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: PRK CORPORATION LIMITED (FORMERLY KNOWN AS TOLL (PRK) LIMITED AND ALSO FORMERLY KNOWN AS PATRICK CORPORATION LIMITED AND AS LANG CORPORATION LIMITED) (ACN 008 660 124) First Respondent PATRICK STEVEDORES HOLDINGS PTY LTD (ACN 060 462 919) Second Respondent PATRICK STEVEDORES OPERATIONS PTY LTD (ACN 065 375 840) Third Respondent PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD (ACN 056 292 687) Fourth Respondent PLZEN PTY LTD (ACN 065 905 571) Fifth Respondent DP WORLD HOLDINGS (AUSTRALIA) LIMITED (FORMERLY KNOWN AS P&O AUSTRALIA LIMITED) (ACN 000 282 977) Sixth Respondent DP WORLD AUSTRALIA LIMITED (FORMERLY KNOWN AS P&O PORTS LIMITED) (ACN 000 049 301) Seventh Respondent P&O WHARF MANAGEMENT PTY LTD (ACN 100 737 264) Eighth Respondent AUSTRALIAN AMALGAMATED TERMINALS PTY LTD (ACN 098 458 229) Ninth Respondent CHRISTOPHER CORRIGAN Tenth Respondent DONALD SMITHWICK Eleventh Respondent ANDREW BURGESS Twelfth Respondent TIMOTHY BLOOD Thirteenth Respondent JUDGE: SACKVILLE J DATE: 18 APRIL 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In a judgment delivered on 28 March 2008, I dealt with motions filed by the respondents seeking to strike out the whole or portion of the amended statement of claim: Australian Competition and Consumer Commission v PRK Corporation Limited [2008] FCA 403. I directed the applicant ('ACCC') to file and serve a further amended statement of claim within 28 days. I also directed that the filing and service of the further amended statement of claim be without prejudice to the entitlement of any of the respondents to file a motion seeking orders striking out the whole or portion of the further amended statement of claim. Otherwise, the motions were dismissed. 2 I stated in the judgment that my intention was to order that the costs of the various motions should be costs in the cause. However, I provided for any party wishing to seek different costs orders to file written submissions. 3 The only party seeking a different costs order is the tenth respondent ('Mr Corrigan'). Mr Corrigan does so on the basis that he was successful in his contention that the amended statement of claim failed to plead material facts necessary to support the allegations of accessorial liability against him. He submits that costs ought to follow the event. 4 The motion filed on behalf of Mr Corrigan sought an order striking out the whole or, alternatively, paras 293-296 of the amended statement of claim. The latter paragraphs pleaded a case of accessorial liability against Mr Corrigan in relation to certain alleged breaches by other respondents of s 45(2) of the Trade Practices Act 1974 (Cth). 5 Mr Corrigan's written submissions in support of his motion adopted generally the submissions made on behalf of other respondents, save the matters particular to them. Mr Corrigan's written submissions specifically argued that the pleading in paras 293-296 of the amended statement of claim was defective. 6 The ACCC answers Mr Corrigan's contentions on costs by pointing out that he adopted generally the submissions made by the other respondents, including submissions that went well beyond the particular issues relating to accessorial liability. The ACCC also points out that it is not surprising that counsel for Mr Corrigan did not advance any oral arguments in support of the broader strike out contentions, since those arguments were fully presented by counsel representing other respondents. The ACCC contends that Mr Corrigan, like the other respondents, was not wholly successful on his motion. 7 In my view, Mr Corrigan would have had a good claim to an order for costs in his favour had he confined his submissions to the defects in the particular paragraphs pleading a case of accessorial liability against him. Because Mr Corrigan aligned himself with the broader submissions made by the other parties, I think it appropriate that his costs, like those of the other parties, should be costs in the cause. 8 I therefore propose to order that the costs incurred by the parties in relation to the respondents' motions, including the motion of the tenth respondent, be costs in the cause. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 18 April 2008 Counsel for the Applicant: Mr J Burnside QC with Mr I G Waller SC and Ms J Gleeson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Tenth Respondent: Mr J R J Lockhart Solicitor for the Tenth Respondent: Arnold Bloch Leibler Lawyers Date of Hearing: 3, 4 March 2008 Date of Last 11 April 2008 Submissions on Costs: Date of Judgment: 18 April 2008