Australian Securities and Investments Commission v Cassimatis (Costs)

The Australian Securities and Investments Commission (ASIC) sought an interlocutory application for a lump sum costs order against the respondents, who had been ordered to pay several costs orders over a long period of litigation. ASIC sought a lump sum costs order to cover the costs of the litigation, arguing that it was necessary due to the respondents' impecuniosity. The respondents opposed the application, arguing that it was incompetent and should be dismissed on the basis that ASIC was "too late" in bringing the application and that the Court was functus officio.

The legal issues before the Court were whether it had jurisdiction to determine the interlocutory application for a lump sum costs order, whether ASIC had been previously determined, whether the Court was functus officio, whether ASIC was "too late" in bringing the application, and whether the application was incompetent where a single judge was asked to revisit the order for costs made by the Full Court. The Court held that neither the Practice Note, nor the relevant provisions of the Rules or the Federal Court of Australia Act mandated the time in which an application for a lump sum costs order must be brought. The Court also held that discretionary considerations in respect of delay were relevant to the exercise of the Court’s discretion of whether to grant the orders sought on the hearing of the substantive application.

The Court found that ASIC could not succeed in respect of the orders it sought in paragraphs 1(a)-(c) of the Interlocutory Application and dismissed the application to that extent. ASIC was not, however, precluded from proceeding before a single judge in respect of the order sought in paragraph 1(d) of the Interlocutory Application, subject to the necessary amendment to the quantum sought. The matter was listed for a further case management hearing to progress the balance of the Interlocutory Application. The costs of the determination of the preliminary issues were reserved until the balance of the interlocutory application was concluded.