Chapmans Ltd v Australian Stock Exchange Ltd [1995] FCA 509

CATCHWORDS

Costs - Discretion - special circumstances of Stock Exchange taken into account. CHAPMANS LIMITED v AUSTRALIAN STOCK EXCHANGE LIMITED No. NG 20 of 1994 BEAUMONT J. SYDNEY 10 JULY 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 20 of 1994 ) GENERAL DIVISION ) BETWEEN: CHAPMANS LIMITED Applicant AND: AUSTRALIAN STOCK EXCHANGE LIMITED Respondent CORAM: BEAUMONT J. DATE: 10 JULY 1995 PLACE: SYDNEY

MINUTES OF ORDER THE COURT ORDERS:

1. Application dismissed. 2. That the applicant pay 70 per cent of the respondent's costs of the proceedings, including the interlocutory application dealt with by Heerey J. 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 ) No. NG 20 of 1994 ) GENERAL DIVISION ) BETWEEN: CHAPMANS LIMITED Applicant AND: AUSTRALIAN STOCK EXCHANGE LIMITED Respondent CORAM: BEAUMONT J. DATE: 10 JULY 1995 REASONS FOR JUDGMENT (ON COSTS)

These proceedings have had a complicated history and are themselves complex. In dealing with an objection to competency in a judgment given last year, I ordered that the applicant pay the respondent's costs of the notice of objection to competency and of the filing of the defence dated 23 February 1994 as well as the costs of and incidental to the hearings on 23 June and 12 December 1994, all other costs to be reserved. I propose now, and will forthwith order, that the proceedings be dismissed. That leaves the question of costs to be dealt with. Reference should be made also, in the present connection, to a decision of Heerey J given on 24 February 1995 in an application made on behalf of the applicant for an interlocutory injunction pending the hearing of the principal proceedings. Those proceedings were successful in that his Honour granted an injunction until the hearing and determination of the proceeding, but further ordered that the costs of the motion be reserved. I have read his Honour's ex tempore reasons for judgment as reproduced, and it appears that the applicant was substantially successful in that interlocutory application. On the other hand, except for one matter to which I will return, in the principal proceedings themselves in which the procedure of the statement of a separate question and its answer was adopted, I have given answers to the questions reserved in terms which were substantially negative so far as the applicant was concerned. The qualification that I would wish to make is that in respect of the final question and answer which were dealt with today, I did not find it necessary to address this substantive point sought to be argued on behalf of the applicant, leaving that matter open, but decided against the grant of relief of the declaration sought on discretionary grounds. On the question of costs, I believe that it is material for me to take into account, in addition to the outcome of the proceedings, two particular circumstances as follows. First, it appears that there is some public interest and benefit involved in the interpretation of the respondent's Listing Rules and their application in the present context. In particular, this is a matter which may be seen as having some benefit and advantage from the point of view of the respondent in its day-to-day administration of its procedures. Secondly, as the history of the litigation itself shows, the procedures laid down by the respondent in the instant context have not at all points been crystal clear in their meaning or application. This is a matter which, in my opinion, is appropriate to be taken into account in making an allowance against the respondent in assessing what is a fair and just order for costs. Taking into account all those circumstances, I have come to the view that, without disturbing the orders for costs made on 12 December 1994, I should order that the applicant pay 70 per cent of the respondent's costs of the proceedings, including the interlocutory application dealt with by Heerey J. I note that I have already dismissed the application. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont. Associate Dated: 10 July 1995