Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Procter v Kalivis (No 3) [2010] FCA 1194
Citation: Procter v Kalivis (No 3) [2010] FCA 1194
Parties: EVE LYNNE PROCTER, BRENDA MAUREEN PROCTER and DOC-IT PTY LTD (ACN 088 334 534) v EVANGELO KALIVIS, ACN 088 370 996 PTY LTD (ACN 088 370 996), PATRICIA ANNE DABROWSKI and TIMOTHY JOHN DABROWSKI
File number: SAD 91 of 2009
Judge: BESANKO J
Date of judgment: 4 November 2010
Catchwords: COSTS — application for costs of application for preliminary discovery brought pursuant to O 15A r 6 of Federal Court Rules — where respondents filed Lists of Documents without need for argument — where applicants made substantially successful application for further and better discovery which respondents contested — whether respondents should pay applicants' costs of application for preliminary discovery — whether costs of application for preliminary discovery should be in discretion of trial judge if substantive proceeding issued
HELD: Respondents ordered to pay applicants' costs of contested application upon which applicants were substantially successful. However, respondents had not adopted adversarial approach to application for preliminary discovery generally and therefore applicants ordered to pay respondents' costs unless proceedings instituted within 2 months, in which case costs to be in discretion of the trial judge.
Legislation: Federal Court Rules O 15A rr 6, 11 Federal Court of Australia Act 1976 (Cth) s 43 Uniform Civil Procedure Rules 2005 (NSW)
Cases cited: Apache Northwest Pty Ltd v Newcrest Mining Ltd (2009) 182 FCR 124, cited C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864, questioned Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD (No 2) [2010] FCA 558, cited Glencore International AG v Selwyn Miners Limited (2005) 223 ALR 238, cited Procter v Kalivis [2009] FCA 1518, cited Steffen v ANZ Banking Group [2009] NSWSC 883, cited Western Bulk Carriers (Australia) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520, cited
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