Kew v Commissioner for Fair Trading & Anor

HIS HONOUR: Having regard to the exchange with counsel, I shall only briefly refer to the reasons for the orders I am about to make.

These proceedings were before the Court two days ago and, by consent, declarations were made in accordance with paragraphs 3 and 5 of the current summons. The question of costs was reserved.

The reason for the adjournment until today was to enable the Court to be informed as to the progress of the matter which is currently before the magistrate at the Local Court at Parramatta. It is common ground that yesterday an application was made to substitute another delegate of the Commissioner for Fair Trading as the institutor, if I can use that word, of proceedings which are reflected in the issue of Court Attendance Notices against the plaintiff before this Court. The magistrate's decision to refuse the application was handed down, I am told, shortly before 4pm yesterday afternoon.

The defendants wish to consider their position. As I indicated to counsel, however, it seems to me that whilst the balance of prayers in the summons perceptibly have a hypothetical element, it seems to me to be contrary to the interests of the Court and the parties to allow it to be further complicated.

The course which I have proposed, and that I raised with counsel is, having made the declarations in accordance with paragraphs 3 and 5, to strike out the balance of the summons, noting that this is done without prejudice to the plaintiff to raise those matters in any further proceedings. That is not the subject of contention on behalf of the defendants. Neither have I heard any submissions on behalf of the defendants against my disclosed provisional view, that the defendants should pay the plaintiff's costs of this summons.

Application is made on behalf of the plaintiff that those costs should be ordered on an indemnity basis and should include the costs of the proceedings before the magistrate. As I have indicated, the proceedings before the magistrate are essentially part heard and, in any event, I see no reason why I should intervene in relation to the costs relative to them. Neither do I see any reason for the imposition upon the defendants of indemnity costs, although I am of the view that they should pay the costs of the summons.

Accordingly, repeating the indication that the orders I am about to make are without prejudice to the ability of the plaintiff to raise similar matters in any further proceedings, the balance of the summons which has been adjourned is struck out. I order the defendants to pay the plaintiff's costs of the summons in this Court.