Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 4) [2018] FCA 72

FEDERAL COURT OF AUSTRALIA

Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 4) [2018] FCA 72 File number: NSD 81 of 2015

Judge: PERRY J

Date of judgment: 9 February 2018

Catchwords: PRACTICE AND PROCEDURE – costs – application to further amend statement of claim – whether respondent acted unreasonably

Legislation: Federal Court Rules 2011 (Cth)

Cases cited: Media Ocean Ltd v Optus Mobile Pty Limited (No 6) [2009] FCA 1319

Date of hearing: 2 February 2018

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 10

Counsel for the Applicant: Mr R I Bellamy

Solicitor for the Applicant: Diamond Conway Lawyers

Counsel for the Respondent: Mr C Burgess

Solicitor for the Respondent: K & L Gates

ORDERS NSD 81 of 2015

BETWEEN: AUSRALIAN PARKING AND REVENUE CONTROL PTY LTD (ACN 131 621 666) Applicant

AND: REINO INTERNATIONAL PTY LTD T/A DUNCAN SOLUTIONS (ACN 079 147 201) Respondent

JUDGE: PERRY J DATE OF ORDER: 9 FEBRUARY 2018

THE COURT ORDERS THAT:

1. The applicant is to pay the respondent's costs of, and thrown away by reason of, the applicant's application for leave to further amend the statement of claim, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J: 1 On 6 November 2017, I granted leave to the applicant, Australian Parking and Revenue Control Pty Limited (Australian Parking), to further amend its statement of claim subject to certain conditions in so far as it sought relief against Reino International Pty Ltd (Reino): Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 3) [2017] FCA 1273 (Australian Parking (No. 3)). In that decision, I also refused leave to amend as against the then second respondent, Parking & Traffic Consultants Pty Ltd (PTC), and dismissed the proceeding as against that respondent. 2 There are no outstanding issues as to costs in the proceeding vis-a-vis PTC. This judgment is concerned only with the question of costs as between Australian Parking and Reino which was the subject of further written submissions following delivery of judgment on the interlocutory application. In Australian Parking (No. 3) at [56], I indicated that it was my preliminary view that Australian Parking should pay Reino's costs of and throw away on the application for leave to further amend. 3 This was Australian Parking's third attempt to plead its case. Orders were made previously striking out an amended statement of claim save for a discrete and separate claim in Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 (Australian Parking (No. 1)). Subsequently leave was refused for Australian Parking to file a further amended statement of claim in the terms then proposed, with Australian Parking being afforded a confined opportunity to re-plead its case: Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd (No 2) [2017] FCA 788 (Australian Parking (No. 2)). 4 The parties accepted as correct the statement of relevant principles by Jagot J in Media Ocean Ltd v Optus Mobile Pty Limited (No 6) [2009] FCA 1319 (Media Ocean) at [34], namely: The one outstanding issue that I can resolve today is whether the applicant should also pay the costs of the notice of motion filed today in Court. Optus relied on what it says is standard principle … to the effect that the terms that are usually imposed on a party in amending a document are that he or she must pay the costs of the application for leave to amend and/or occasioned by and thrown away as a consequence of the amendment. However, if an opponent unreasonably opposes such an application, he or she may be ordered to pay the costs of the motion for leave to amend. It is my understanding that the basis of this general principle is that an applicant seeking leave to amend has an independent obligation to satisfy the Court that leave should be granted, irrespective of the position that the respondent takes. That is, even if the respondent does not oppose an application for leave to amend, such leave will not automatically be granted. The person seeking to amend must come to the Court with sufficient material and submissions to persuade the Court that leave should be granted. Accordingly, the parties would have to attend Court for that purpose anyway. 5 Reino submits that it is entitled to its costs of, and thrown away by reason of, the applications for leave to amend in line with the general principle identified by Jagot J in the passage quoted above. Australian Parking opposes an order being made in those terms, submitting instead that Reino and Australian Parking should each bear their own costs of the interlocutory application for leave to amend on the ground that Reino unreasonably opposed the grant of leave. In support of that submission, Australian Parking relies upon the following contentions: (1) Australian Parking was granted leave to amend subject only to "very limited conditions" and as such substantially succeeded on the application; (2) the history of the matter is not relevant to the question of the costs of this application which should be decided on its own merits; and (3) when pressed by the solicitors for Australian Parking, Reino declined in an email dated 11 August 2017 to identify the reasons for its refusal to consent to the then draft further amended statement of claim. Rather, Reino indicated only that in its view the reasoning in Australian Parking (No 2) "is clear", and requested that Australian Parking adhere to the timetable ordered by consent "and not 'call on' my client to again (for a third time) demonstrate why leave ought not to be granted to file the pleading." 6 I do not consider that any of these matters alone or cumulatively establish that Australian Parking acted unreasonably in defending the application to further amend so as to displace the general principle. 7 First, as Justice Jagot explained, Australian Parking was always under an independent obligation to satisfy the Court that leave should be granted irrespective of the position adopted by Reino. The onus in other words lay upon Australian Parking to establish that leave to amend should be granted, rather than upon Reino to establish why it should not. As Reino submits, it was also necessary in any event for Australian Parking to attend Court to respond to PTC's opposition to the grant of leave which was wholly successful. 8 Secondly, while Reino declined in its email to set out its reasons for opposing the pleading, those reasons were set out in detail in its written submissions filed on 12 September 2017 and therefore well in advance of the hearing of the application on 17 October 2017. 9 Thirdly, the grant of leave to amend was on conditions arising from matters raised by Reino in opposition to the application which were intended to ensure that Reino was given fair notice of certain aspects of the case alleged against it and to reflect an important concession made by counsel for Australian Parking in the course of oral argument: see Australian Parking (No. 3) at [22], [29], [32] and [54]. Furthermore, as I observed in my reasons the proposed pleading was "somewhat convoluted" and "not a model of clarity", even though I ultimately found that the case which the applicant sought to run was sufficiently clear from the pleading subject to the conditions I have mentioned: Australian Parking (No. 3) at [23] and [25]; see also my criticisms at [25] of the reference to "fully compliant" in the pleading. In short, as Jagot J held in Media Ocean [35], the matters raised by Reino were relevant to the exercise of the discretion and it was entitled to raise them. 10 In the circumstances, Reino's opposition to the application to amend was reasonable and it is entitled to its costs of, and thrown away by reason of, that application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.