Supreme Court New South Wales Medium Neutral Citation: Annova Pty Limited v Wholesale Brands Pty Ltd [2015] NSWSC 1391 Hearing dates: 7 and 8 September 2015 Decision date: 08 September 2015 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph 56 Catchwords: PRACTICE AND PROCEDURE – Interlocutory injunction – Application to restrain Defendants from making representations that a pram that it sold meets or complies with one or more of the Australian Safety Standards – Allegedly false representations – Serious question to be tried not in dispute – Whether balance of convenience favours granting interlocutory injunction at least until receipt of single expert report – Whether damages an adequate remedy – Question of utility of Plaintiff's undertaking as to damages COSTS – Whether costs of interlocutory application should be determined at conclusion of the interlocutory hearing – Ordered that costs of the interlocutory hearing should be reserved until following receipt of the single expert report at which time the application for costs may be made Legislation Cited: Competition and Consumer Act 2010 (Cth) Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: 1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881 Ashton Manufacturing Pty Ltd v Express Sign Labs Pty Ltd [2015] FCA 975 Attorney-General v Knight [2014] VSC 549 Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132 Iscorp Investments Pty Limited v Yohana [2011] NSWSC 17 NWL Ltd v Woods [1979] 1 WLR 1294 O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 286 ALR 257 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 Category: Procedural and other rulings Parties: Annova Pty Limited (Plaintiff) Wholesale Brands Pty Ltd (first Defendant) Anthony James Schmiede (second Defendant) Tamara Marie Schmiede (third Defendant) Representation: Counsel: Mr D Favell (Defendants) Solicitors: Somerville Legal (Plaintiff) Rouse Lawyers (Defendants) File Number(s): 2015/255663 Judgment 1. HIS HONOUR: The Plaintiff and the first Defendant are both, relevantly, involved in the business of selling prams and strollers. Each imports prams from, made by the same manufacturer in, China, that are then sold to members of the public in New South Wales and elsewhere in Australia. The relevant pram bears the reference I-S021. 2. The managing director of the Plaintiff is Neville John Sharples. He has a background in mechanical engineering. He claims, by experience, to have knowledge of the requirements of the safety Standards prescribed for prams in Australia. There is no dispute that there are a number of published Standards that apply in Australia in regard to, inter alia, pram safety. In fact, the relevant Standards cover such things as performance testing, design, construction, safety warnings and informative labels and markings for prams and strollers. 3. The minimum Standard is called the Mandatory Standard and it is based on Australian Standard AS/NZS 2088:2000 'Prams and strollers—safety requirements' as referred to in Consumer Protection Notice No. 8 of 2007. There are other Standards that apply higher levels of compliance, namely Australian Standard AS/NZS 2088:2000, Australian Standard AS/NZS 2088:2009 and Australian Standard AS/NZS 2088:2013. The only Standard that must be complied with is the Mandatory Standard. The others are what was described by the Plaintiff's legal representative as "voluntary standards" which "involve more stringent tests" but which "give the person who has achieved them, a more prestigious product by being able to say that they comply with those standards": T22.49-T23.11). 4. The second and third Defendants, who are husband and wife, are the sole directors and shareholders of the first Defendant. They conduct the business operations of the first Defendant. 5. The matter came before me in the Duty List, initially on 1 September 2015, for the abridgement of time for the service of a Summons and the affidavit in support, and then, a few days later, on 7 September 2015, for contested interlocutory relief to which I shall refer. The Defendants accept that the documents were served on each of them personally on 2 September 2015. 6. On 7 September 2015, the interlocutory relief sought by the Plaintiff was as follows: "1. Upon the plaintiff, by its legal representatives, giving the usual undertaking as to damages, the plaintiff claims an order that until final hearing of this matter, or further order, that the defendants be restrained from making representations that have the following meanings: 1.1 The 'I Believe' Pram is certified to meet or complies with the latest AS/NZS 2088:2013 Standard. 1.2 The 'I Believe' Pram is certified to meet or complies with the AS/NZS 2088:2009 Standard. 1.3 The 'I Believe' Pram is certified to meet or complies with the Australian Mandatory Standard. 1.4 The 'I Believe' Pram has a maximum load of up to 25kgs. 1. It was possible to glean from the relief sought in the Summons and the evidence relied on, that the basis of the Plaintiff's prospective claims may include allegations of false and misleading representations, misleading and deceptive conduct, and a claim for damages. There was some evidence to suggest that the Plaintiff wishes to rely upon s 18(1) of the Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)). 2. Despite the nature of the likely allegations, and what are, currently, disputed issues of fact, the Plaintiff did not commence the proceedings by Statement of Claim, but by Summons. It is clear that if the matter proceeds to a final contested hearing, the parties will be required to expend significant amounts of money on legal fees. The final hearing may take some days as, after having read the evidence, there are likely to be a number of witnesses, including expert witnesses. 3. At the interlocutory hearing, the Plaintiff relied upon an affidavit sworn 31 August 2015, of Mr Sharples, and an exhibit to that affidavit, which became Ex. A in the proceedings. 4. Without objection, the Defendants sought the leave of the court to file, and rely upon, an affidavit by the third Defendant, affirmed 5 September 2015, an exhibit to that affidavit (which became Ex. 1) as well as an affidavit of the Defendants' solicitor, Eloise Victoria Pawley, also affirmed on 5 September 2015, and an exhibit to that affidavit (which became Ex. 2). 5. Despite encouraging the legal representatives of the parties (neither of the directors of each corporate entity being present at any time during the hearing) to approach the matter with the overriding duty enshrined in s 56 of the Civil Procedure Act 2005 (NSW) firmly in focus, and with a view to keeping costs proportionate to what might be the damages suffered by one or other of the parties, they did not appear to be prepared to do so. To the contrary, the application was brought, and contested, with great vigour on both sides. 6. In all, the claims for interlocutory relief took more than 2 hours on the first day, then had to be adjourned, part heard, to a second day. Before the hearing on the second day, which recommenced shortly after 10:00 a.m., each legal representative assured the court (T22.20-T22.25) that the balance of the hearing would take no more than 1 hour. That was a severe underestimate as the oral submissions on behalf of the Plaintiff, there being no written submissions served or filed, continued until about noon. Then, the Defendants' submissions (written submissions having been provided to which counsel spoke) and submissions in reply continued until 2:45 p.m. (although there were several brief interruptions whilst the court dealt with other duty matters). 7. Even after indicating, orally, that I proposed to grant an injunction, following the conclusion of the submissions at 2:45 p.m., and then allowing the parties an opportunity to prepare a form of orders that they considered appropriate, the matter continued for about an hour. During this time, the debate concerned the precise form of orders and then the question of costs. The hearing continued until almost 4:45 p.m., when interlocutory orders were finally made. 8. More than once during the interlocutory hearing, the court suggested that a single expert could be appointed to provide an opinion on specific questions involving whether the pram being sold by the Defendants (described in the evidence as an "I-Believe" pram I-S021) complied with one or more of the relevant Standards. Apart from having in mind Practice Note SC Eq 5, the reason for suggesting this course was that there is a dispute about whether the pram model, the subject of the complaints, sold by the first Defendant, does, or does not, comply with any relevant Standard. 9. The parties agreed that the Plaintiff to establish that there is non-compliance with any Standard needed only to show a failure to pass one of the relevant clauses within the Standard whereas the first Defendant, to establish that it had complied with the Standard, must show that it complies with each of the clauses of the Standard: T34.50-T35.03. 10. Both legal representatives conceded that an expert report would be beneficial to all parties, since the conclusions contained in it would, or would not, provide the basis for the claims of each, and, in all probability, would provide the necessary, and, perhaps, undisputed expert opinion evidence to enable the parties, and the court, to determine whether there was, or was not, compliance with the relevant Standards. One consequence, then, might be that any final hearing would be considerably shortened, perhaps to the point of extinction. The expert report, when considered, would certainly limit costs and, perhaps, expedite the application for a hearing date if a hearing is still required. 11. The case is particularly suited to the appointment of a single expert. Each party's legal representative accepted that the issue of compliance would require some expertise. Whilst some evidence was given by Mr Sharples and there was a copy of an expert report annexed to his affidavit about the topic of non-compliance with one or more of the Standards, there was also some expert evidence relied upon by the Defendants. In relation to that evidence, there was an issue raised by the Plaintiff concerning the certification of the organisation that had provided the report. 12. The Defendants, however, were not prepared to have the Plaintiff's expert (it being accepted that there were two relevant certifying experts in Australia) appointed as a single expert to carry out an examination on a pram supplied to it by the Defendants, even though it seemed that a report could be produced by that expert within about two weeks after the Defendants made available a sample pram for inspection and testing (that is by about 23 September 2015). The only other certifying expert, apparently, was away until towards the end of October 2015. 13. In an attempt to assist the parties further in coming to a practical solution, and as I had spent a significant amount of time, even then, on the interlocutory hearing, the legal representatives were informed that if the report were provided quickly, the matter might be brought back before me (before my departure on long leave and even though I would then not be the Duty Judge) to enable further orders, and, if necessary, directions for the further conduct of the proceedings (including an order that the matter continue by pleadings) to be made. Even this attempt proved unsuccessful. 14. After informing the parties that I proposed to grant an interlocutory injunction, because I was satisfied that the threshold legal considerations applicable had been satisfied, and that I considered it was just that an order should be made, I also indicated, my then view was that the costs of the interlocutory proceedings should be reserved because it would be more appropriate to consider the question of costs after the report of the single expert was received by the parties and the court. 15. The Plaintiff's legal representative, then stated, upon enquiry, that the Plaintiff required written reasons for judgment. When I enquired why that was so (in circumstances where the unsuccessful Defendants did not require any reasons), and in circumstances where the orders were going to be entered forthwith, I was informed that the Plaintiff wished to use the reasons for judgment "solely because of the effect it might have in the market place": T82.10-T82.11. 16. It was again then necessary to remind the legal representative of the Plaintiff that the court, in any reasons for judgment, would not determine any disputed issues of fact. As was pointed out by White J in 1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881, at [5] (and referred to with approval more recently in Attorney-General v Knight [2014] VSC 549, per T Forrest J, at [18]): "[The court] does not seek to resolve conflicts of evidence. The parties have not had the benefit of cross-examination or been able to deploy all other relevant evidence that may be available at a final hearing. The evidence adduced by the defendant is to be taken into account in determining whether on all the evidence the plaintiff has demonstrated that there is a serious question to be tried. That formulation of the question mandates that any conflict between the evidence of the plaintiff's witnesses and the defendant's witnesses is not to be resolved, but rather it is to be assumed that any such conflict would be resolved in the plaintiff's favour (Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 724)". 1. Despite these matters, the parties are, of course, entitled to reasons for judgment. (I indicated to the parties that I would not require them to appear at the time of publishing the reasons but would provide a copy thereof when the reasons had been completed: T87.31-T87.35. I shall follow this course.) 2. As will be read, the Plaintiff's legal representative, despite the lateness of the day, wished to argue against the costs of the interlocutory hearing being reserved. I shall explain later in these reasons why that course was adopted (apart from the fact that to do otherwise would require the matter continuing the next day unless the court continued to sit). Determination 1. There was no dispute as to the relevant considerations that apply in respect of the court granting an injunction. Section 66(4) of the Supreme Court Act 1970 (NSW) confers upon the court a discretionary power, at any stage of proceedings, on terms, to grant an interlocutory injunction "in any case in which it appears to the Court to be just or convenient so to do". It is an unfettered, wide, and general, power. 2. Ultimately, the court's jurisdiction to grant interlocutory relief is tailored to the individual circumstances of any particular case and is exercised according to principles applied to those circumstances. As recognised by the sub-section, the fundamental purpose of an injunction, in the context of the underlying cause of action, is to prevent injustice or inconvenience. It can be in the form of an order requiring a party to do (a mandatory injunction), or to refrain from doing (a prohibitory injunction), a specified act. The sub-section makes no distinction between the two types of injunction. 3. I have set out the other principles in a summary way, in Iscorp Investments Pty Limited v Yohana [2011] NSWSC 17, at [28] as follows: "(a) The court has power to grant an interlocutory injunction in all cases in which it appears to be just or convenient that the order should be made. The remedy is discretionary, but the discretion is not at large. (b) The High Court has explained the threshold legal considerations applicable for an interlocutory injunction: Australian Broadcasting Corporation v O'Neill ('O'Neill') [2006] HCA 46; (2006) 227 CLR 57 [19], [65]-[72] and in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217. (c) The purpose of an interlocutory injunction is to preserve the status quo until final hearing: Lenah (at [62]) per Gaudron J; (at [64]) per Gummow and Hayne JJ; (at [159(4)] per Kirby J; see also (at [6]) per Gleeson CJ; R Meagher, J Heydon, M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed (2002), Butterworths Lexis Nexis (at [21-340]). (d) The general question for consideration, as McClelland J said in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, at 535, is: '... the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled...' (e) It is not the function of a judge hearing an application for interlocutory injunctive relief, to conduct a preliminary trial of the action. Nor is it, in general, his, or her, function to resolve the conflict between the parties' evidence and grant or refuse the application upon the basis of such findings. (f) Where an interlocutory injunction is sought, it is necessary to identify the legal (including statutory), or equitable, right(s) which are to be determined at the trial and in respect of which final relief is sought: Lenah; O'Neill (at [54]) per Gummow and Hayne JJ. (g) In O'Neill, it was stated that the applicant must demonstrate that: (i) There is a serious question to be tried that is a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. (ii) The injury which the applicant is likely to suffer must be one for which damages will not provide an adequate remedy. (iii) The balance of convenience must favour the granting of an injunction. The balance of convenience requires a consideration of the relevant matters favouring, or militating against, granting an injunction. (h) As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 54 - 55; Todd v Novotny [2001] WASC 171. (i) The grant of an injunction involves balancing the injustice which might be suffered by the respondent if the injunction is granted and the applicant later fails at trial, against the injustice which might be suffered by the applicant if the injunction is not granted and the applicant later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 at [14]; Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [11]; Romeg Holdings Pty Ltd v Kelly [2010] WASC 404." 1. I should add that the court does not lose sight of the practical realities of the situation to which the injunction will apply: NWL Ltd v Woods [1979] 1 WLR 1294, per Lord Diplock, at 1306. 2. In this case, an additional consideration applies since the complaints made by the Plaintiff about the Defendants' conduct affects, or may affect, members of the public. In exercising the discretion to which I have referred, the court is also required to assess and compare the prejudice and hardship likely to be suffered by members of the public, generally, if an injunction is granted, with that which is likely to be suffered if no injunction is granted. The interests of members of the public have more or less weight according to other material circumstances. 3. For these propositions, reference need only to be made to Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 286 ALR 257, at [68]-[69]: "It may also be necessary to consider and evaluate the impact that the grant or refusal of an injunction will have or is likely to have on third persons and the public generally. In Patrick (Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1) at [65] and [66] (pp 41–43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997) (at pp 402–403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive." 1. The Defendants did not dispute, and nor could they, the real significance to members of the public (parents looking to purchase a pram for a child) of compliance with one or more of the Standards. Indeed, the third Defendant's affidavit contained a reference to the concern of parents purchasing prams for new born babies and toddlers alike being "particularly concerned with the safety of the prams and often seek assurance that the prams comply with Australian standards". 2. Turning then to the relevant matters, that there is a serious question to be tried was not the subject of dispute and was, ultimately, during submissions, accepted by counsel for the Defendants. It is, therefore, unnecessary to detail the matters that led me to be satisfied, otherwise, of this threshold legal consideration prior to making the orders. 3. The Defendants' counsel vigorously submitted that this was a case in which damages would be an adequate remedy. Initially, this seemed an attractive submission particularly bearing in mind the evidence concerning the number of prams each of the Plaintiff, and the first Defendant, sold in any one year. 4. However, the legal representatives both accepted, that the damages, if any, suffered by either the Plaintiff, or the first Defendant (if the Plaintiff's case is ultimately not successful and a resort is had to the Plaintiff's undertaking as to damages) could be extremely difficult to assess because of the difficulties in establishing causation between any loss of business and any actions of the other party as well as the difficulty in the calculation of the quantum of damage arising from any loss of business. 5. There are many difficulties in establishing and quantifying damages in cases involving claims for loss of chance of obtaining or retaining customers: Ashton Manufacturing Pty Ltd v Express Sign Labs Pty Ltd [2015] FCA 975, at [13]-[14]. 6. The thrust of the submissions on each side really went to the balance of convenience and the utility of the Plaintiff's undertaking as to damages. 7. In respect of the latter matter, the evidence of Mr Sharples included the following paragraph: "Unfortunately, at the time I became aware of the defendant's advertisements, the plaintiff was not of the financial means to run an urgent application for an injunction against the defendants having just concluded Supreme Court proceedings… The plaintiff is now in the financial position to run such an application." 1. In addition, a search of the Plaintiff, a copy of which formed part of Ex. A, reveals that the Plaintiff is a registered Australian proprietary company, limited by shares, which was started in 1993. Mr Sharples and Amanda Mei Yoke Sharples, are the two directors of the Plaintiff. The Plaintiff has issued two $1.00 shares, one of which is held by each of the directors. 2. Having received Mr Sharples affidavit and the exhibit thereto, the solicitors for the Defendants, a few days prior to the interlocutory hearing, raised with the solicitors for the Plaintiff, the utility of any undertaking as to damages provided by the Plaintiff. In particular, they wrote: "Please provide evidence of your client's ability to satisfy our client's damages if the undertaking as to damages had to be called upon." 1. There is no evidence of any response to this request, and no further evidence was relied upon by the Plaintiff. When asked whether Mr Sharples, as one of the persons who stands behind the Plaintiff, and as its Managing Director, would provide an undertaking as to damages, the legal representative of the Plaintiff stated from the bar Table, that instructions from Mr Sharples, who, as I have written, did not appear at the hearing, could not be obtained. 2. I considered whether the court should require security for the undertaking as to damages as an incident of the granting of the interlocutory injunction. However, despite the submissions made on behalf of the Defendants, I was satisfied on balance that the affidavit evidence of Mr Sharples contained in the last sentence of the paragraph quoted should be accepted on the interlocutory hearing and that the Plaintiff's undertaking as to damages should be regarded as being effective. Any inability to satisfy such damages that it may be ordered to pay, is only contingent upon the complete failure on its part in respect of these proceedings. 3. In addition, in the event that the Plaintiff decided to not seek the continuation of the injunction, because, for example, the single expert concluded that the model of the pram sold by the Defendants did meet one, or more, of the relevant standards, the argument may be more about whether, the Defendants have suffered any damages and costs. On the sales information given, the likely quantum of damages, if any, that the first Defendant sustained, at least at this stage, would not appear to be very much. 4. When I made the orders, I was satisfied that the balance of convenience favoured granting the injunction. 5. There is some risk of damage to the Plaintiff's business in not granting the injunction. I am not sure that it is as significant as the legal representative of the Plaintiff would have the court believe, but the evidence does reveal that some risk of damage does exist. Accordingly, this matter is in favour of granting the injunction. 6. In any event, as stated earlier, it is also necessary to remember what was written in World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181, per Bowen CJ, at 186-187: "Proceedings under the Trade Practices Act have a special character in that the Act deals with the protection of the public interest, and in the instant case, with the protection of consumers. In the course of protecting that public interest, the Act also enables a party to seek relief from injury to his own interests. An applicant for an injunction under s 80 need not show that a proprietary interest of his is affected, or that he has suffered special damage, or indeed, that he personally has suffered any damage at all. Even where the application is brought by a rival competitor seeking redress of damage to his business caused by the allegedly unfair and illegal practices of the respondent, the application, though it vindicates or protects the private interests of the competitor, at the same time secures the public interest of consumer protection. Though, for example, the complaint under Pt V of the Act in some cases closely resembles an action for passing off or trade libel, it is nevertheless an action to protect the consuming public from being misled or misinformed. For competition between rival traders properly to be promoted, it is necessary that the relevant market is kept adequately informed about the goods or services available for purchase, and is not misled by deceptive trade practices." 1. Thus, I considered that the prejudice to members of the public that could arise if an interlocutory injunction is not granted is of some importance. 2. Naturally in doing so, I have considered the evidence of the third Defendant that she has not received "any negative feedback from customers" and that "[a]ll of the feedback that has been published on eBay has been 100% positive…" and that the grant of an injunction would seriously impact upon the conduct of their business. However, it seems to me that there would be a much more serious impact upon that business, and perhaps, to each of the second and third Defendants personally, if an injury were sustained by a new born baby or toddler in the use of a pram supplied by the first Defendant following the commencement of the proceedings because there has been a failure to comply with one, or more, of the requirements prescribed by the relevant Standard, if an injunction were not granted. 3. The receipt by all parties of the single expert report should enable them to be satisfied whether there has been compliance with one or other of the relevant Standards. If the subject model pram does not comply, the Defendants will be able to decide what steps to take to remedy any specific matters of non-compliance. Presumably, they would then consent to the continuation of the injunction until further order, and the issue will be as to damages, if any, sustained by the Plaintiff, and the costs of the interlocutory injunction. 4. If the model pram does comply, then, presumably, the Plaintiff will consent to the injunction being dissolved and the issue will be as to damages, if any, sustained by the Defendants, and the costs of the interlocutory injunction. 5. As I stated earlier, having informed the legal representatives of my intention to grant an injunction, I indicated that, in order to determine how the costs of the interlocutory application should be borne, the contents of the single expert report could be relevant and that, in all the circumstances of the case, I proposed to reserve the costs of the interlocutory application. 6. The legal representative of the Plaintiff sought to argue that I should not do so, but rather, should determine those costs upon the basis that the Plaintiff had been successful in obtaining an interlocutory injunction despite the opposition of the Defendants and accordingly costs should follow the event. He did not appear to appreciate that his application was for an award of costs for part of the proceedings no matter what the final result of the action was; that the proceedings were not yet finalised; or that if the application for costs was to be heard and determined, it would require the matter to be adjourned, yet again, bearing in mind the late hour. Nor did he seem to consider that the evidence filed in respect of the interlocutory application would be relevant to the final hearing. 7. On the question of costs and why they should be reserved until after the single expert report is obtained, I cannot do better than quote Spender J in in O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591, at 598: "The primary concern that an order for costs reflect the justice of the situation is the reason that on many interlocutory questions the costs are reserved. In most cases, when an order for costs of the principal proceedings is made, no specific reference is made to costs which are reserved and they are, by the order for costs which is made, picked up in favour of the party that has been successful in the litigation. This circumstance reinforces the not uncommon position that in respect of the payment of costs of an interlocutory application, it is not necessarily just that the costs of an interlocutory application should follow the result of that interlocutory application but rather should be determined by the result of the principal litigation of which the interlocutory application forms but a part. For the same reason, costs orders on interlocutory applications are sometimes made whereby the costs of the application are the costs of the applicant in the principal proceedings or of a respondent in the principal proceedings, so that the benefit of that costs order is dependent on the outcome of the principal litigation. In this particular case, there has not been a final determination of the issues initiated between O'Keeffe Nominees and BP. In that sense, there has been no determination of which party would ultimately succeed and there has not been 'the event' which, absent any specific order, reserved costs would follow." 1. Similarly, in Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132, at 140, that: "[I]t is important to bear in mind in the case of any interlocutory application that the final result of the action may reveal that a successful party in relation to such an application has no merits in relation to the action." 1. So that it will not be left to another Judge of this court, who has no knowledge of the way in which the Plaintiff's application proceeded, I have made an order that, upon my return from long leave, I shall determine the costs of the interlocutory application if the parties are unable to agree upon that order before that time. 2. Finally, I should mention that I enquired of the parties' legal representatives whether the Plaintiff would wish me to make directions to enable the matter to proceed expeditiously, by, for example, ordering the matter to proceed by way of pleadings and consequential orders. Both stated that no directions as to the further conduct of the proceedings should be made, and that the matter should simply be referred to the Registrar's List following the receipt of the single expert's report. 3. Then, the following orders were made (in accordance with discussions between Bench and bar): "1. Upon the Plaintiff, by its legal representative, Mr B Hemsworth, giving the usual undertaking as to damages, orders that the Defendants are restrained until 5:00 p.m. on Monday, 2 November 2015 from making representations that have the following meanings:- a. The 'I Believe' Pram model I-S021 is certified to meet or that it complies with the latest AS/NZS 2088:2013 standard; b. The 'I Believe' Pram model I-S021 is certified to meet or that it complies with the latest AS/NZS 2088:2009 standard; c. The 'I Believe' Pram model I-S021 is certified to meet or that it complies with the Australian Mandatory Standard; d. The 'I Believe' Pram model I-S021 has a maximum load up to 25kgs. 2. Orders that Dr John Asher of the Australian Consumers' Association, 57 Carrington Road, Marrickville, NSW 2204 be engaged as the parties' single expert. 3. Orders that the parties, within 14 days, must endeavour to agree on written instructions to be provided to the parties' single expert concerning the issues arising for the expert's opinion and concerning the facts and assumptions of fact on which the expert's report is to be based. 4. Orders the Defendants provide to the single expert, by registered post, sent no later than 4:00 p.m. on Friday, 11 September 2015, or such other date as is agreed by the parties, one 'I Believe' Pram model I-S021. 5. Orders that the Plaintiff, by its Managing Director, Neville Sharples, may visually inspect and photograph the 'I Believe' Pram model I-S021 sent to the expert within 14 days, or such other time as agreed by the parties of being informed that the pram has been received by the expert. 6. Notes that Dr John Asher has consented to the engagement as a single expert. 7. Notes the agreement of the parties that the costs of the single expert will be borne equally by the Plaintiff and the Defendants (50% share each). 8. Orders that the costs of the proceedings to date be reserved and will be dealt with upon a date to be arranged by the parties contacting Hallen J's Associate to determine the issue of costs. 9. Stands the matter over to the Registrar's List at 10:00 a.m. on Monday, 2 November 2015. 10. Orders that these orders be entered forthwith." 1. In accordance with the discussions with the legal representatives, these reasons will be handed down without the need for any appearance and a copy will be forwarded to each of them. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2015