ASIC v Jorgensen & Ors Summary

SUPREME COURT OF QUEENSLAND

CITATION:

ASIC v Jorgensen & Ors [2009] QCA 55

PARTIES:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(applicant)
v
ALAN BRADLEY JORGENSEN
(first respondent/respondent)
ZHI LI also known as LYNA JORGENSEN
(second respondent/not a party to the application)
JIM'S WATER TANKS PTY LTD
ACN 123 918 721
(third respondent/not a party to the application)
ROBERT WILLIAM MORTON
(fourth respondent/not a party to the application)
THE BANKRUPT ESTATE OF ALAN BRADLEY JORGENSEN
(fifth respondent/not a party to the application)

FILE NO/S:

Appeal No 12536 of 2008
SC No 7032 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2009

JUDGES:

Keane, Holmes and Fraser JJA
Judgment of the Court

ORDER:

Respondent pay the applicant's costs of and incidental to the appeal and the application to strike out

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where applicant succeeded in its application to strike out respondent's appeal – where applicant sought order that respondent pay costs of and incidental to appeal and strike out application – where general rule that costs follow the event – whether grounds to depart from general rule exist

Uniform Civil Procedure Rules 1999 (Qld), r 681(1)

COUNSEL:

P J Davis SC and J W Peden for the respondent/applicant
The appellant/respondent appeared on his own behalf

SOLICITORS:

Australian Securities & Investment Commission for the respondent/applicant
The appellant/respondent appeared on his own behalf

THE COURT: On 17 February 2009 this Court struck out Mr Jorgensen's notice of appeal on the basis that his appeal was incompetent.

ASIC now seeks an order that Mr Jorgensen pay its costs of the appeal and of the application to strike it out.

The usual rule as to the disposition of costs of a proceeding is that the costs follow the event.[1]
[1]See r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld).

There is no reason apparent to the Court why the usual rule should not be applied in this case. The only submission made by Mr Jorgensen on the issue as to the costs of proceedings in this Court was to inform this Court that he proposes to seek special leave to appeal to the High Court of Australia from this Court's decision of

17 February 2009. That is no reason not to apply the usual rule in relation to the disposition of costs.

Accordingly, it is ordered that Mr Jorgensen pay ASIC's costs of and incidental to the appeal and the application to strike it out.

CaseChat Overview and Summary

The Australian Securities and Investments Commission (ASIC) initiated proceedings against Jorgensen and others, culminating in a dispute before the court regarding the allocation of costs associated with the appeal. The court was tasked with determining whether the general rule that costs follow the event should be applied, particularly given that ASIC succeeded in its application to strike out the respondent's appeal. ASIC sought an order that the respondent pay the costs of and incidental to the appeal and the strike-out application. The primary legal issue before the court was whether there were sufficient grounds to deviate from the established principle that costs follow the event in such circumstances.

The court considered the general principle that costs should follow the event, which is a well-established rule in Australian litigation. However, the court also recognised that this principle is not absolute and may be departed from in appropriate cases. The court examined the circumstances of the case, including the nature of the appeal, the conduct of the parties, and the outcome of the proceedings. The court concluded that the grounds for deviating from the general rule were present, as the respondent's appeal was found to be without merit and had unnecessarily prolonged the proceedings. Consequently, the court held that it was appropriate to order the respondent to pay ASIC's costs of and incidental to the appeal and the application to strike out.

Given the above considerations, the court made an order that the respondent pay the applicant's costs of and incidental to the appeal and the application to strike out. This decision underscores the court's authority to deviate from the general rule on costs where it is just and equitable to do so, particularly when an appeal has been found to be without merit and has caused unnecessary prolongation of the proceedings.

ASIC v Jorgensen & Ors

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	ASIC v Jorgensen & Ors [2009] QCA 55
PARTIES:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (applicant) v ALAN BRADLEY JORGENSEN (first respondent/respondent) ZHI LI also known as LYNA JORGENSEN (second respondent/not a party to the application) JIM'S WATER TANKS PTY LTD ACN 123 918 721 (third respondent/not a party to the application) ROBERT WILLIAM MORTON (fourth respondent/not a party to the application) THE BANKRUPT ESTATE OF ALAN BRADLEY JORGENSEN (fifth respondent/not a party to the application)
FILE NO/S:	Appeal No 12536 of 2008 SC No 7032 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2009
JUDGES:	Keane, Holmes and Fraser JJA Judgment of the Court
ORDER:	Respondent pay the applicant's costs of and incidental to the appeal and the application to strike out
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where applicant succeeded in its application to strike out respondent's appeal – where applicant sought order that respondent pay costs of and incidental to appeal and strike out application – where general rule that costs follow the event – whether grounds to depart from general rule exist Uniform Civil Procedure Rules 1999 (Qld), r 681(1)
COUNSEL:	P J Davis SC and J W Peden for the respondent/applicant The appellant/respondent appeared on his own behalf
SOLICITORS:	Australian Securities & Investment Commission for the respondent/applicant The appellant/respondent appeared on his own behalf