Anthony v Maxam Australia Pty Ltd

In *Anthony v Maxam Australia Pty Ltd*, the Full Federal Court considered an appeal concerning the power of a court to make an order regarding the rate or scale of costs payable following a notice of discontinuance. The appellant, Mr. Anthony, had filed a notice of discontinuance in proceedings against the respondent, Maxam Australia Pty Ltd.

The central legal issue before the Full Federal Court was whether the Federal Court of Australia possessed the inherent jurisdiction, or alternatively, statutory power under the *Federal Court of Australia Act 1976* (Cth) or the *Federal Court Rules 2011* (Cth), to make an order as to costs on a particular scale or rate after a notice of discontinuance had been filed. Specifically, the court had to determine if it could depart from the usual costs order that follows a discontinuance, which typically involves the discontinuing party paying the costs of the other party on an ordinary or party-and-party basis.

The Full Court reasoned that the power to award costs in the Federal Court is primarily governed by statute and the Rules. While the court has inherent jurisdiction to control its process and prevent abuse, this jurisdiction is not unlimited and must be exercised in accordance with the statutory framework. The court found that Rule 21.01 of the *Federal Court Rules 2011* provides for the consequences of a notice of discontinuance, including the liability of the discontinuing party to pay the costs of the other party. However, the Rules do not expressly grant a general power to order costs on a specific scale or rate in such circumstances, beyond the usual party-and-party basis, unless specific grounds for such an order are established, such as misconduct or an abuse of process. The court distinguished this from situations where costs might be awarded on an indemnity basis due to exceptional circumstances.

The Full Court concluded that, in the absence of specific statutory authority or established grounds for exercising inherent jurisdiction to depart from the standard costs order following a discontinuance, the court could not impose costs on a different scale than that ordinarily applicable. The appeal was therefore dismissed.