Aurora Funds Management Limited v Australian Government Takeovers Panel (Costs)
[2020] FCA 611
•8 May 2020
FEDERAL COURT OF AUSTRALIA
Aurora Funds Management Limited v Australian Government Takeovers Panel (Costs) [2020] FCA 611
File number: NSD 1583 of 2017 Judge: PERRAM J Date of judgment: 8 May 2020 Catchwords: COSTS – where application for judicial review dismissed – where costs of interlocutory application in dispute – whether submitting party entitled to costs for period of legal representation Legislation: Federal Court Rules 2011 (Cth) r 40.04 Cases cited: Aurora Funds Management Limited v Australian Government Takeovers Panel (Judicial Review) [2020] FCA 496 Date of hearing: 22 October 2018, 10 October 2019 and 23 March 2020 Date of last submissions: 1 May 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 5 Counsel for the Applicant: Mr J Slattery (22 October 2018)
Mr A Broadfoot QC with Ms T Skvortsova (10 October 2019 and 23 March 2020)Solicitor for the Applicant: Clyde & Co Counsel for the First Respondent: Ms V R Brigden (22 October 2018)
Mr M Tyson (10 October 2019 and 23 March 2020)Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: Mr S B Lloyd SC with Ms A M Mitchelmore SC (22 October 2018)
Mr S B Lloyd SC with Mr P Herzfeld (10 October 2019 and 23 March 2020)Solicitor for the Second Respondent: Australian Securities and Investments Commission Counsel for the Third and Fourth Respondents: The Third and Fourth Respondents filed a submitting notice save as to costs Counsel for the Fifth Respondent: The Fifth Respondent did not appear ORDERS
NSD 1583 of 2017 BETWEEN: AURORA FUNDS MANAGEMENT LIMITED (ACN 092 626 885), INCLUDING AS RESPONSIBLE ENTITY FOR AURORA FORTITUDE ABSOLUTE RETURN FUND AND AURORA GLOBAL INCOME TRUST
Applicant
AND: AUSTRALIAN GOVERNMENT TAKEOVERS PANEL
First Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent
MOLOPO ENERGY LIMITED (ACN 003 152 154)
Third Respondent
KEYBRIDGE CAPITAL LIMITED (ACN 088 267 190)
Fourth Respondent
NICHOLAS BOLTON
Fifth Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
8 MAY 2020
THE COURT ORDERS THAT:
1.The Applicant pay the Second Respondent’s costs as taxed, agreed or assessed.
2.The Applicant pay the Third Respondent’s costs as taxed, agreed or assessed for the period 5 October 2017 until 11 July 2018.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
On 17 April 2020 I dismissed an application for judicial review brought by the Applicant: Aurora Funds Management Limited v Australian Government Takeovers Panel (Judicial Review) [2020] FCA 496. In my reasons for dismissing the application, I tentatively concluded that the Applicant should pay the Second Respondent’s costs and that there should be no order as to the First Respondent’s costs or as to the costs of the submitting parties. I invited submissions from the parties as to the costs in the event that any of them departed from that view.
Subject to one issue concerning Molopo, the parties have now agreed that the costs for this application should follow the event and that accordingly the Applicant is to pay the Second Respondent’s costs.
However, there is a dispute about the costs of an interlocutory application filed by the Applicant on 6 September 2019 seeking to reopen its case. Those costs were reserved. The Applicant submits that it was successful in its application to reopen and therefore claims that the Second Respondent should pay its costs of that application. However, the Applicant was only permitted to reopen on a limited basis and some of the grounds it had sought to ventilate were not permitted. Given both parties had some success, it seems to me to be appropriate that there be no order as to the costs of that interlocutory application.
Turning then to the position of Molopo, it filed a submitting appearance on 5 October 2018 and took no part in the hearing. However, at the commencement of the proceeding on 8 September 2017 it was joined as the Third Respondent and appointed solicitors to act for it. They filed a notice of acting on 5 October 2017 and a notice of ceasing to act on 11 July 2018. The filing of the submitting appearance reserved to Molopo an entitlement to raise the issue of costs. Molopo now seeks its costs from 5 October 2017 until 11 July 2018. It seems to me that those costs were incurred by Molopo because Aurora commenced proceedings against it and that those proceedings have ultimately proven unsuccessful. Molopo is entitled to its costs as taxed, agreed or assessed for the period 5 October 2017 until 11 July 2018.
In respect of the proceeding I order that the Applicant pay the Second Respondent’s costs as taxed, agreed or assessed. The effect of r 40.04 of the Federal Court Rules 2011 (Cth) will be that the Applicant will bear the costs of the interlocutory application. I also order that the Applicant pay Molopo’s costs as taxed, agreed or assessed for the period 5 October 2017 until 11 July 2018.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 8 May 2020
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