Ashby v Slipper (No 3)

Case [2015] FCAFC 9


FEDERAL COURT OF AUSTRALIA

Ashby v Slipper (No 3) [2015] FCAFC 9

Citation: Ashby v Slipper (No 3) [2015] FCAFC 9
Appeal from:

Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411

Parties: JAMES HUNTER ASHBY v PETER SLIPPER
File number: NSD 22 of 2013
Judge: MANSFIELD, SIOPIS & GILMOUR JJ
Date of judgment: 9 February 2015
Catchwords:

COSTS – whether respondent who settles a claim by an applicant against it is thereafter vulnerable to a costs order as a “non-party” where (it is asserted by the successful applicant) the remaining respondent is unable to meet the costs order

COSTS – whether the successful applicant has established an entitlement to costs against a non-party – where the non-party is not shown to have directly or indirectly supported the respondent’s conduct of the proceeding – where the non-party had settled the related claim against it including on the basis that there be no liability for costs – application for costs against non-party refused

Legislation:

Members of Parliament (Staff) Act 1984 (Cth)
Fair Work Act 2009 (Cth)
Federal Court Rules 2011 (Cth)
Parliamentary Entitlements Regulations 1999 (Cth)
Financial Management and Accountability Act 1997 (Cth)
Federal Court of Australia Act 1976 (Cth)

Cases cited: Ashby v Commonwealth (No 4) (2012) 209 FCR 65
Ashby v Slipper (2014) 219 FCR 322
Ashby v Slipper (No 2) [2014] FCAFC 67
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514
Ashby v Slipper [2014] FCA 973
Knight v FP Special Assets Ltd (1992) 174 CLR 178 at [34] (Knight), and in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50
Kebaro Pty Ltd v Saunders [2003] FCAFC 5
Yirra Pty Ltd v Summerton [2009] FCAFC 50
Date of hearing: Heard on the papers
Date of last submissions: 19 September 2014
Place: Adelaide (via video link to Sydney and Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 83
Counsel for the Applicant: T Blackburn SC with R Gration
Solicitor for the Applicant: Harmers Workplace Lawyers
Counsel for the Respondent: IM Neil SC with S Keating
Solicitor for the Respondent: Hilliard & Berry Solicitors
Counsel for the Commonwealth of Australia: K Eastman SC
Solicitor for the Commonwealth of Australia: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 22 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JAMES HUNTER ASHBY
Applicant

AND:

PETER SLIPPER
Respondent

JUDGES:

MANSFIELD, SIOPIS & GILMOUR JJ

DATE OF ORDER:

9 FEBRUARY 2015

WHERE MADE:

ADELAIDE (VIA VIDEO LINK TO SYDNEY AND CANBERRA)

THE COURT ORDERS THAT:

1.The application of James Hunter Ashby to amend the interlocutory application of 18 June 2014 is refused.

2.The interlocutory application of James Hunter Ashby of 18 June 2014 to vacate the orders as to costs made by the Full Court on 10 June 2014 is refused.

3.James Hunter Ashby…

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Ashby v Slipper (No 3) [2015] FCAFC 9
Case
[2015] FCAFC 9
Decision Date

CaseChat Overview and Summary

The case of Ashby v Slipper (No 3) involved a complex dispute between the parties, with James Hunter Ashby pursuing a claim against Peter Slipper. The matter came before the court with several interlocutory applications regarding costs, including Ashby's attempt to amend his initial application and his request to vacate certain costs orders made by the Full Court. The Commonwealth of Australia also became involved as a party due to its interests in the matter.

The primary legal issue before the court was whether the respondent, who had settled a claim by Ashby, could be subject to a costs order as a non-party, given that the other respondent was unable to meet the costs order. The court needed to determine if Ashby had established an entitlement to costs against the non-party, particularly when the non-party had not directly or indirectly supported the other respondent's conduct of the proceedings. Additionally, the non-party had settled the related claim against it on the condition that there would be no liability for costs.

The court ruled that Ashby's application to amend his interlocutory application and to vacate the costs orders was refused. The reasoning behind this decision was that Ashby had not shown that the non-party had supported the other respondent's conduct of the proceeding. Furthermore, the non-party had settled the claim on the basis that there would be no liability for costs, which was a significant factor in the court's decision. Consequently, the application for costs against the non-party was also refused.

The court further ordered that Ashby pay the Commonwealth of Australia's costs of the application on an indemnity basis, limited to costs reasonably incurred in resisting the proposed amendment of that application. Additionally, Peter Slipper's interlocutory application was also refused. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application of James Hunter Ashby to amend the interlocutory application of 18 June 2014 is refused.

2. The interlocutory application of James Hunter Ashby of 18 June 2014 to vacate the orders as to costs made by the Full Court on 10 June 2014 is refused.

3. James Hunter Ashby pay to the Commonwealth of Australia its costs of the application of 18 June 2014 on an indemnity basis limited to costs reasonably incurred in resisting the proposed amendment of that application.

4. The interlocutory application of Peter Slipper of 15 September 2014 is refused.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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