Checked-Out Pty Limited v Eagle Eye Inspections Pty Limited [2004] FCA 1759

Checked-Out Pty Limited v Eagle Eye Inspections Pty Limited [2004] FCA 1759

The motions against Ms Lane and Mr Solomon were premature and should be dismissed. Because the proceeding was part-heard, it was not yet possible to determine with certainty what costs had been thrown away, and a hearing of the motions at this stage risked prejudicing the fair conduct of the proceeding by requiring waiver of legal professional privilege. Further, insofar as s 198M of the Legal Profession Act 1987 (NSW) was relied upon, no application could be made before a final costs assessor determination. The moving respondents were therefore ordered to pay Ms Lane's and Mr Solomon's costs of the motions.

Jurisdiction
Australia
Judgment Date
02 September 2004
Procedural Posture
Copyright Infringement Proceeding; Interlocutory Motions for Costs Against Legal Practitioners / Part Heard Proceeding; Motions Returnable on 2 September 2004
Outcome
The motions were dismissed insofar as they related to Ms Patricia Lane and Mr Paul Solomon; the moving respondents were ordered to pay their costs.
Legal Topics
['wasted Costs' 'costs Against Legal Practitioners' 'prematurity of Costs Applications' 'legal Professional Privilege' 'copyright Particulars']
['civil Procedure' 'costs' 'copyright' 'legal Profession'] ['wasted Costs' 'costs Against Legal Practitioners' 'prematurity of Costs Applications' 'legal Professional Privilege' 'copyright Particulars']

Case Brief

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Procedural Posture

Copyright Infringement Proceeding; Interlocutory Motions for Costs Against Legal Practitioners / Part Heard Proceeding; Motions Returnable on 2 September 2004

Legal Issues

  1. 1 ['Whether the motions seeking orders that Ms Patricia Lane and Mr Paul Solomon pay or indemnify costs thrown away should proceed before final determination of the part-heard proceeding.' 'Whether the moving respondents had identified a sufficient basis at this stage for costs orders against the legal practitioners under s 43 of the Federal Court of Australia Act 1976 (Cth), O 62 r 9 of the Federal Court Rules, or s 198M of the Legal Profession Act 1987 (NSW).' 'Whether an application under s 198M of the Legal Profession Act 1987 (NSW) could be made before a final costs assessment determination.' 'Whether hearing the motions at this stage could prejudice the fair conduct of the proceeding by requiring waiver of legal professional privilege.']

Ratio Decidendi

The motions against Ms Lane and Mr Solomon were premature and should be dismissed. Because the proceeding was part-heard, it was not yet possible to determine with certainty what costs had been thrown away, and a hearing of the motions at this stage risked prejudicing the fair conduct of the proceeding by requiring waiver of legal professional privilege. Further, insofar as s 198M of the Legal Profession Act 1987 (NSW) was relied upon, no application could be made before a final costs assessor determination. The moving respondents were therefore ordered to pay Ms Lane's and Mr Solomon's costs of the motions.

Court Disposition

The motions were dismissed insofar as they related to Ms Patricia Lane and Mr Paul Solomon; the moving respondents were ordered to pay their costs.

Orders

  • ['ORDERS that the notices of motion of the second to fifth respondents and of the sixth to eleventh respondents, both filed on 23 August 2004, be dismissed insofar as they relate to second and third named respondents of the motion, Ms Patricia Lane and Mr Paul Solomon.' "ORDERS that the applicants on the motions...