Cadbury Schweppes Pty Ltd ACN 004 551 473 v Darrell Lea Chocolate Shops Pty Ltd ACN 000 498 386 [2005] FCA 112

Cadbury Schweppes Pty Ltd ACN 004 551 473 v Darrell Lea Chocolate Shops Pty Ltd ACN 000 498 386 [2005] FCA 112

The respondent was not entitled to costs on a solicitor-client basis as the applicants' conduct, while displaying some procedural derelictions, did not warrant a punitive costs order given that much of the parties' interlocutory effort would carry over to any fresh proceeding. The interests of justice were preserved by allowing both parties continued benefit of discovery materials and giving the respondent leave to seek a stay if costs ordered were not paid before new proceedings.

Parties
First Applicant: Cadbury Schweppes Pty Ltd ACN 004 551 473; Second Applicant: Cadbury Limited; Respondent: Darrell Lea Chocolate Shops Pty Ltd ACN 000 498 386
Jurisdiction
Australia
Judgment Date
15 February 2005
Procedural Posture
Application for Leave to Discontinue Proceedings and Costs Orders / Application for Discontinuance and Costs Orders Prior to Trial
Outcome
Leave granted for applicants to discontinue proceeding upon payment of respondent's costs on party and party basis; benefit of discovery and subpoena material preserved for potential new proceeding; respondent given leave to seek stay if costs unpaid in new proceeding.
Legal Topics
Discontinuance of Proceedings, Costs Orders, Discovery and Implied Undertaking
Civil Procedure Discontinuance of Proceedings Costs Orders Discovery and Implied Undertaking

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Parties

Cadbury Schweppes Pty Ltd ACN 004 551 473

First Applicant

Cadbury Limited

Second Applicant

Darrell Lea Chocolate Shops Pty Ltd ACN 000 498 386

Respondent

Procedural Posture

Application for Leave to Discontinue Proceedings and Costs Orders / Application for Discontinuance and Costs Orders Prior to Trial

Legal Issues

  1. 1 Whether applicants should be granted leave to discontinue proceedings
  2. 2 Upon what basis costs should be awarded—party and party or solicitor-client
  3. 3 Whether parties may utilise documents discovered or produced by subpoena in any new proceedings

Ratio Decidendi

The respondent was not entitled to costs on a solicitor-client basis as the applicants' conduct, while displaying some procedural derelictions, did not warrant a punitive costs order given that much of the parties' interlocutory effort would carry over to any fresh proceeding. The interests of justice were preserved by allowing both parties continued benefit of discovery materials and giving the respondent leave to seek a stay if costs ordered were not paid before new proceedings.

Court Disposition

Leave granted for applicants to discontinue proceeding upon payment of respondent's costs on party and party basis; benefit of discovery and subpoena material preserved for potential new proceeding; respondent given leave to seek stay if costs unpaid in new proceeding.

Orders

  • Each party to retain benefit of discovery and subpoenaed documents until the earlier of commencement of new proceeding or 7 June 2005, subject to implied undertakings.
  • Applicants relieved from implied undertaking with respect to use of disclosed documents in preparing new proceeding.