ASIC v Jorgensen & Ors

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.