NASAA Certified Organic Pty Ltd v Ayhan [2014] FCA 940

NASAA Certified Organic Pty Ltd v Ayhan [2014] FCA 940

The applicant did not require leave to discontinue because pleadings had not closed, and the discretion under r 26.12(7) was not enlivened until a notice of discontinuance was filed. A discrete costs order for the interlocutory application was inappropriate because the applicant had not clearly stated whether it would pursue or discontinue the proceedings, appeared to be seeking the Court's costs view before deciding whether to discontinue, the interlocutory application had never been pursued, and the claimed interlocutory costs were intertwined with costs of the substantive proceeding, creating a risk of later taxation difficulties.

Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Application for Costs of Interlocutory Application and Alternative Application Concerning Discontinuance of Proceedings / Oral Application Before Disposal of Substantive Proceedings
Outcome
The applicant's oral application for the costs of the interlocutory application was refused.
Legal Topics
['costs of Interlocutory Application' 'discontinuance' 'misleading or Deceptive Conduct' 'injunctive Relief' 'federal Court Rules']
['practice and Procedure' 'costs' 'consumer Law'] ['costs of Interlocutory Application' 'discontinuance' 'misleading or Deceptive Conduct' 'injunctive Relief' 'federal Court Rules']

Case Brief

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Procedural Posture

Application for Costs of Interlocutory Application and Alternative Application Concerning Discontinuance of Proceedings / Oral Application Before Disposal of Substantive Proceedings

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to discontinue the proceedings on condition that the respondents pay its costs.' "Whether the Court should order the respondents to pay the applicant's costs of the interlocutory application for injunctive relief before the substantive proceedings were disposed of." "Whether the applicant's unclear intentions about the future conduct or discontinuance of the proceedings made a discrete interlocutory costs order inappropriate."]

Ratio Decidendi

The applicant did not require leave to discontinue because pleadings had not closed, and the discretion under r 26.12(7) was not enlivened until a notice of discontinuance was filed. A discrete costs order for the interlocutory application was inappropriate because the applicant had not clearly stated whether it would pursue or discontinue the proceedings, appeared to be seeking the Court's costs view before deciding whether to discontinue, the interlocutory application had never been pursued, and the claimed interlocutory costs were intertwined with costs of the substantive proceeding, creating a risk of later taxation difficulties.

Court Disposition

The applicant's oral application for the costs of the interlocutory application was refused.

Orders

  • ['The oral application of the applicant for the costs of the interlocutory application contained in the originating application filed on 6 June 2014 is refused.' "The applicant is to pay the respondents' costs, if any, in relation to the attendances in relation to that oral application, including the attendances in...