AgriWealth Capital Limited v Australian Financial Complaints Authority Limited (No 2)

[2023] FCAFC 128

FEDERAL COURT OF AUSTRALIA

AgriWealth Capital Limited v Australian Financial Complaints Authority Limited (No 2) [2023] FCAFC 128

File number(s):	NSD 1083 of 2022
Judgment of:	PERRY, DOWNES AND KENNETT JJ
Date of judgment:	10 August 2023
Catchwords:	COSTS – where appeal was dismissed – where issue was raised by Court regarding jurisdiction – further submissions invited and matter listed for a second day – where court determined that it had jurisdiction – appellants ordered to pay respondents’ costs – where second respondent was not an active party – where appellants applied to vary costs orders – costs order varied in part
Legislation:	Federal Court Rules 2011 (Cth) rr 39.04, 39.32
Cases cited:	AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2023] FCAFC 118
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	14
Date of last submission/s:	8 August 2023
Counsel for the Appellants:	Mr J Ireland KC
Solicitor for the Appellants:	McGirr Lawyers
Counsel for the First Respondent:	Mr M Izzo SC with Mr M Pulsford
Solicitor for the First Respondent:	Becketts Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice

ORDERS

NSD 1083 of 2022

BETWEEN:

AGRIWEALTH CAPITAL LIMITED

First Appellant

AUSTRALIAN FORESTRY MANAGEMENT PTY LIMITED

Second Appellant

AND:

AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY LIMITED

First Respondent

STEVEN KIRBY

Second Respondent

ORDER MADE BY:	PERRY, DOWNES AND KENNETT JJ
DATE OF ORDER:	10 AUGUST 2023

THE COURT ORDERS THAT:

1.Order 2 of the Order dated 28 July 2023 be varied so that it states:

The appellants pay the first respondent’s costs of the appeal and, as between the appellants and the second respondent, there be no order as to costs.

2.The interlocutory application dated 31 July 2023 is otherwise dismissed.

3.The appellants pay the first respondent’s costs of the interlocutory application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. This is an interlocutory application to amend a costs order that was made by this Court on 28 July 2023, after dismissing the appeal: AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2023] FCAFC 118.

2. At the first hearing date of the appeal on 4 May 2023, we raised a question regarding the Court’s jurisdiction to hear the proceeding.  On 9 May 2023, the parties were ordered to file and serve any additional submissions on the issue of jurisdiction by 18 May 2023.

3. The appeal proceeded on a second day on 28 June 2023, at which the issue of jurisdiction and the substantive issues in the appeal were addressed.

4. We determined that the proceedings were within jurisdiction and dismissed the appeal on 28 July 2023.  We made orders to that effect on that date and further ordered that the appellants pay the respondents’ costs.

5. Prior to the entry of those orders in accordance with r 39.32 of the Federal Court Rules 2011 (Cth), the appellants applied for an amendment to the costs order pursuant to r 39.04 in the following terms:

   The appellants pay the first respondent’s costs of the appeal excluding the first respondent’s costs of and incidental to the issue of the jurisdiction of the Federal Court of Australia.  As between the appellants and the second respondent, no order as to costs.

6. On 3 August 2023, entry of the costs order made on 28 July 2023 was stayed pending determination of the application.

7. We agree that the appellants should not be ordered to pay the second respondent’s costs, as he was an inactive party and did not file an application for costs.  The first respondent did not take any position in relation to this variation.

8. However, we disagree that the costs order made in favour of the first respondent should exclude the costs associated with the issue as to whether the Federal Court had jurisdiction.

9. While the issue as to jurisdiction was an issue raised by the Court, it was an issue which needed to be determined in order for the appeal to proceed at all.  Had it been determined that the Federal Court did not have jurisdiction, the proceedings would have been dismissed as incompetent.

10. That the parties agreed between them that the Federal Court had jurisdiction is not to the point. 

11. Further, the first respondent advanced detailed submissions on the issue, which were adopted by the appellants.  Those submissions were accepted and a determination was made that the Court had jurisdiction, but that the appeal should be dismissed.

12. While the issue is a finely balanced one, we are not persuaded that it is appropriate to resile from the usual position that costs follow the event as between the appellants and first respondent.

13. For that reason, we will not vary the order to exclude the costs associated with the jurisdictional issue as is sought by the appellants, and will dismiss their interlocutory application.

14. As the appellants have not achieved success in their interlocutory application as against the first respondent, they should pay the first respondent’s costs of that application also.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry, Downes and Kennett.

Associate:

Dated:       10 August 2023