Australian Power and Water Pty Ltd v Independent Public Business Corporation of Papua New Guinea

[2003] NSWSC 1261

CITATION:	Australian Power and Water Pty Ltd v Independent Public Business Corporation of Papua New Guinea [2003] NSWSC 1261
HEARING DATE(S):	17/12/03, 19/12/03
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	McDougall J at 1
DECISION:	See paras [20] and [21] of judgment
CATCHWORDS:	PRACTICE AND PROCEDURE - costs - application for stay of proceedings - relevant considerations
PARTIES :	Australian Power and Water Pty Ltd v Independent Public Business Corporation of Papua New Guinea
FILE NUMBER(S):	SC 50139/03
COUNSEL:	D R Sibtain (Counsel for plaintiff and respondent to the motion) F Kunc (Counsel for respondent and plaintiff to the motion)
SOLICITORS:	Corrs Chambers Westgarth (for Australian Power and Water) Truman Hoyle (for IPBC)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

19 December 2003 (Revised 22 December 2003)

INDEPENDENT PUBLIC BUSINESS CORPORATION
OF PAPUA NEW GUINEA

JUDGMENT (ON FORM OF ORDERS AND COSTS)

HIS HONOUR:

1 In this matter, I gave judgment this morning, in which I indicated, in substance, that the proceedings should be stayed to enable the defendant to activate the alternative dispute resolution proceedings under clause 10 of the subject contracts. I indicated conditions that, in my view, would be appropriate and that liberty to apply should be reserved.

2 I stood the matter over to enable the parties to bring in short minutes of order to effect my reasons and to put submissions on costs.

3 The defendant propounds draft orders:

“1 The proceedings be stayed until further order;
2 The Plaintiff pay the Defendant’s costs of the Defendant’s motion filed 21 November 2003;
3 List the matter for review in the Commercial List directions list on Friday, 27 February 2004;
4 Grant liberty to either party to apply on 3 days’ written notice.”

4 In my view, orders in accordance with paragraphs 1, 3 and 4 of that draft would be appropriate. I say that because, in my view, it is appropriate to stay the proceedings until further order, upon the basis, firstly, that the plaintiff can exercise the liberty to apply that would be reserved, should it feel either that the defendant is not being expeditious in activating the clause 10 procedure, or that, for whatever reason (for example, because there is no appropriate guideline in relation to expert determination) that the procedure has stalled.

5 Secondly, I see no sensible difference between staying the proceedings until further order, upon the basis that the plaintiff has the right to bring the matter back before the Court, and staying the proceedings until a fixed date, upon the basis that the question of a further stay will then be reconsidered.

6 Indeed, the latter procedure seems to me to be susceptible to the production of greater expense and inconvenience to the parties and greater inconvenience to the Court.

7 The other dispute is as to the costs of the defendant's Notice of Motion. The defendant submits that it has achieved a substantial measure of success. The plaintiff, perhaps not surprisingly, submits that the defendant has not.

8 If one looks at the Notice of Motion, it will be perceived that I have, effectively, disagreed with the contentions that were advanced in support of prayers 2, 3, 4 and 5. Further, as to prayer 1, I have declined to order a permanent stay and have indicated that I will order, instead, that the proceedings be stayed until further order, with liberty to apply.

9 If the purpose of the stay is to enable clause 10 and its attendant proceedings to be worked out (and I interpolate that that was the way the matter was argued before me), then it is appropriate that the stay be not permanent, but either for a fixed time, or until further order.

10 It was, of course, appropriate to seek a permanent stay upon the basis of inappropriate forum and I acknowledge that prayer 1 of the Notice of Motion could have gone to that. However, and even though that construction of the Notice of Motion may be supported because prayer 2 is expressed to be in the alternative to prayer 1, it seems to me that, if the defendant had intended to argue the availability and enforceability of clause 10, then prayer 1 was the only vehicle through which that argument could have been advanced.

11 It is correct to say that in the correspondence that passed between the parties' legal representatives prior to the filing of the Notice of Motion, the defendant relied, among other things, upon the availability and enforceability of clause 10, and the plaintiff asserted that clause 10 was not enforceable.

12 To the extent that it is appropriate to regard that correspondence as having the function of defining or limiting issues in relation to the Notice of Motion, it may be said that the defendant has succeeded, to an extent, on one of the issues thereby defined or limited.

13 However, as I have said, if that issue were intended to be raised, it is at least arguable that prayer 1 of the Notice of Motion was an inappropriate way of raising it.

14 It is put for the defendant that costs should follow the event and that the event is that it has, in substance, succeeded. However, I think, it is necessary to bear in mind that the different grounds of relief for which the defendant argued lead to different results. Thus, if service had not been authorised by the rules, it would have been appropriate to make an appropriate declaration and to set aside service, or to set aside, as it was put in prayer 3, "the originating process".

15 If it had been concluded that this Court was an inappropriate forum, then it would have been appropriate to make an appropriate declaration and, again, to grant consequential relief.

16 However, the measure of success that the defendant has had does not lead to either of those results. It is not a case where one of a number of arguments was relied upon and succeeded, in circumstances where acceptance of any of the arguments would have led to the same overall conclusion.

17 The question of costs is frequently difficult and, in this case, it is made more difficult because, as I have said, the plaintiff refused to accept any of the propositions advanced by the defendant. In an appropriate case, it might be reasonable to seek to apportion the costs. However, I do not see this as being such a case.

18 Even though the issues were clear and separate and it would be possible to form some rough and ready estimate of the amount of time devoted to each, that would not take account of the circumstance that the outcome, as I have said varies, according to the arguments that are accepted.

19 Indeed, it is at least conceivable in the present case, that mediation will fail and the expert determination process will, for one reason or another, grind to a halt without producing a determination. If that happens, then the parties will, subject to any order made by another judge or a higher Court, be left to argue their dispute in this Court.

20 For those reasons and also, to seek to encourage the resolution of all the disputes in the process of alternative dispute resolution for which clause 10 provides, I am of the view that the appropriate order is that the costs of the defendant's Notice of Motion filed 21 November 2003 should be the defendant's costs in the proceedings.

21 In lieu of paragraph 2 of the draft orders I will insert: “The costs of the defendant's Notice of Motion filed on 21 November 2003 be the defendant's costs in the proceedings.” With that modification, I make orders in accordance with paragraphs 1 to 4 of the draft orders that I have initialled and dated with today's date and shall place with the papers. ******

Last Modified: 02/19/2004