FEDERAL MAGISTRATES COURT OF AUSTRALIA
SMITH & ORS v MARAPIKURRINYA PTY LTD & ORS (No.2)	[2010] FMCA 79	

TRADE PRACTICES – Alleged misleading and deceptive conduct in relation to alleged representations in native title and aboriginal heritage matters.

COSTS – Application in a case – where respondents’ application for summary dismissal unsuccessful – where respondents’ application for transfer of proceedings to the Federal Court successful.	

Federal Magistrates Court Rules 2001 (Cth), r.16.01	

Smith & Ors v Marapikurrinya Pty Ltd & Ors [2010] FMCA 5	

First Applicant:	Gene Smith	

Second Applicant:	MARY ATTWOOD	

Third Applicant:	GEORGE DANN	

Fourth Applicant:	SHIRLEY LOCKYER	

Fifth Applicant:	PATRICIA MASON	

Sixth Applicant:	ROBERT DANN	

First Respondent:	Marapikurrinya Pty Ltd	

Second Respondent:	DIANA ROBINSON	

Third Respondent:	KERRY ROBINSON	

File Number:	PEG 10 of 2009	

Judgment of:	Lucev FM	

Hearing date:	Written submissions	

Date of Last Submission:	9 February 2010	

Delivered at:	Perth	

Delivered on:	9 February 2010	

REPRESENTATION
Counsel for the Applicant:	Mr A. Rumsley	

Solicitors for the Applicant:	Alan Rumsley	

Counsel for the Respondents:	Mr P Sheiner	

Solicitors for the Respondents:	Gadens Lawyers	

ORDERS
(1)	There be no order as to the costs of the application in a case.
(2)	Otherwise, the costs of the proceedings in PEG 10 of 2009 in the Federal Magistrates Court be as determined by the Federal Court in the transferred proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Perth	
PEG 10 of 2009
Gene Smith	
First Applicant

Mary Attwood	
Second Applicant

George Dann	
Third Applicant

Shirley lockyer	
Fourth Applicant

patricia mason	
Fifth Applicant

robert dann	
Sixth Applicant

And

MARAPIKURRINYA PTY LTD	
First Respondent

diana robinson	
Second Respondent

kerry robinson	
Third Respondent

REASONS FOR JUDGMENT
Costs
1.	The Court handed down its reasons for judgment in relation to an application in a case in this matter on 29 January 2010. The orders made on the same date were as follows:
	1. The respondents’ application for summary dismissal of the proceedings be dismissed.
	2. The respondents’ application for transfer of the proceedings be upheld.
	3. The proceedings in matter number PEG 10 of 2009 be transferred to the Federal Court of Australia following determination of costs in this matter, with the costs reserved for further determination by the Court following receipt of any written submissions:
	a) from the respondents by 5 February 2010; and
	b) from the applicants by 12 February 2010,
	with any order as to costs to issue from Chambers.
2.	At the judgment hearing the Court indicated to the parties that it was preliminarily inclined to make no order as to costs in relation to the application in a case because the respondents were successful on the application for transfer but not on the summary dismissal application.
3.	Pursuant to Order 3(a) of the Orders of 29 January 2010, Counsel for the respondents submitted the following:
	…there should be no order as to the costs of the [transfer] application for the reasons indicated by His Honour when giving judgment, namely the respondent/applicant [on the motion] was successful on the transfer but not the summary dismissal application. Alternatively, the costs of the summary judgment application should be reserved to the hearing of the substantive application.
4.	Pursuant to Order 3(b) of the Orders of 29 January 2010, Counsel for the applicants submitted the following:
	The applicants support the costs orders proposed by His Honour on 29 January 2010, for the reasons raised on that occasion.
Consideration and orders
5.	The Court concludes, consistent with and for the reasons expressed at the judgment hearing and in the submissions of the parties, that there be no order made as to the costs of the application in a case. Otherwise, costs in this Court should be determined by the Federal Court in the transferred proceedings.
6.	The Court publishes these reasons for judgment from Chambers, pursuant to r.16.01 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Dinon

Date:  9 February 2010