Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 [2008] FCA 865

FEDERAL COURT OF AUSTRALIA

Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 [2008] FCA 865 PRACTICE AND PROCEDURE – amended notice of motion – application to vacate trial dates – leave to file further amended statement of claim – whether vacation of trial will prejudice respondent PRACTICE AND PROCEDURE – application to inspect property of third party premises pursuant to O 17 of the Federal Court Rules – offer of undertaking to the court as to confidentiality COSTS – whether respondent entitled to costs thrown away as a result of the vacation of trial dates – whether on an indemnity or standard basis – whether applicant entitled to costs of notice of motion if successful Held: upon applicant providing undertaking regarding contact with third parties, leave to file further amended statement of claim granted and trial dates vacated – any prejudice to respondent compensable by costs and undertaking – inspection of property of third party ordered in light of further amendments to pleadings – confidentiality requires inspection be conducted by expert independent of applicant – applicant to pay respondent's costs thrown away as result of vacation of trial dates and further amendment to pleadings – circumstances of case not such as to warrant indemnity costs – costs of amended notice of motion reserved

Trade Practices Act 1974 (Cth) ss 51A, 52, 53 Federal Court Rules O 13 r 2, O 17

Abela v Giew (1964) 81 WN (Pt 1) NSW 344 cited Australian Broadcasting Commission v Parish (1980) 29 ALR 228 cited Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40 cited Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 cited David Charles Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998) cited Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 cited Ex parte Fielder Gillespie Ltd [1984] 2 QdR 339 cited Ketteman v Hansel Properties Ltd [1987] AC 189 cited Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 cited Menzies v CRCI Pty Ltd [2007] NSWCA 118 cited Smith v Gannawarra Shire Council (2002) 4 VR 344 cited SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 applied State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 cited The Commonwealth v Verwayen (1990) 170 CLR 394 cited