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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.