Bedi v Edwards

Case [2024] FCA 966


FEDERAL COURT OF AUSTRALIA

Bedi v Edwards [2024] FCA 966

File number(s): ACD 50 of 2022
Judgment of: PERRY J
Date of judgment: 30 August 2024
Catchwords: COSTS – application for costs by non-party – power to award such costs – existence of exceptional circumstances to justify award of costs to interested person – costs awarded in part
Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules of 2011 (Cth) r 2.32(3)

Legal Profession Act 2006 (ACT) s 419

Cases cited:

Fletcher and Barnet in the matter of Octaviar Ltd [2012] FCA 344

Kelly v Willmott Forests Ltd (in liquidation) (No 6) [2019] FCA 745

Knight v FP Special Assets Ltd (1992) 174 CLR 178

O’Keefev Hayes Knight GTO Pty Ltd [2005] FCA 1559

Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 46
Date of hearing: 12 August 2024
Counsel for the Applicant: The Applicant did not appear.
Counsel for the Respondent: Mr T Brennan SC and Mr S McIntosh
Solicitor for the Respondent: Aulich
Counsel for the Interested Person: Mr D Moujalli and Mr N Olson
Solicitor for the Interested Person: Thomson Geer

ORDERS

ACD 50 of 2022
BETWEEN:

RAHUL BEDI

Applicant

AND:

CRAIG EDMUND EDWARDS

First Respondent

DEBORAH ROLFE

Second Respondent

JAMES PHILIP WILKINSON TRELOAR (and others named in the Schedule)

Third Respondent

THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Interested Person

ORDER MADE BY:

PERRY J

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:

1.Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act), an interim non-publication order is made limiting disclosure of the reasons for judgment given on 30 August 2024 to the parties, the interested person, the legal representatives of the parties and the interested person, and Court staff until 5pm on 3 September 2024.

2.By midday on Tuesday 3 September 2024, the parties and the interested person are to advise as to whether there are any passages in the reasons for judgment given on 30 August 2024 which they propose be redacted pursuant to s 37AH of the FCA Act and explaining the reasons why by reference to the grounds in s 37AG prior to publication of the reasons.

3.By 4pm on Monday 2 September 2024, the Interested Person is to file and serve the following documents:

(a)the affidavit of Katie Elizabeth Miriam Binstock made on 7 March 2024;

(b)the Interested Person’s submissions in support of the costs application dated 13 March 2024 (costs submissions); and

(c)the Interested Person’s submissions dated 13 November 2023 which are referred to in the costs submissions.

4.Pursuant to s 37AI of the FCA Act, an interim non-publication order is made limiting disclosure of the documents referred to in order 3 above to the parties, the interested person, the legal representatives of the parties and the interested person, and Court staff.

5.Pursuant…

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AGLC
Bedi v Edwards [2024] FCA 966
Case
[2024] FCA 966
Decision Date

CaseChat Overview and Summary

The case of Bedi v Edwards involved an application by the Law Society of New South Wales seeking costs from the respondents, who were parties in the case. The dispute centred around the appropriate allocation of costs following an interlocutory hearing and the subsequent application for non-publication orders. The Federal Court of Australia was tasked with deciding whether exceptional circumstances justified awarding costs to the Law Society.

The court was required to determine whether exceptional circumstances existed to warrant awarding costs to the Law Society. The primary legal issue was whether the Law Society had demonstrated that exceptional reasons justified an award of costs against the respondents up to and including the interlocutory hearing on 13 June 2023, and whether it was appropriate to extend this order to cover the entire application for costs.

In its reasoning, the court found that exceptional circumstances did exist to justify an award of costs to the Law Society up to and including the interlocutory hearing on 13 June 2023. However, the court did not find that extending this award to cover the entire application for costs was in the interests of justice. Consequently, the court ordered that the respondents pay the costs of the Law Society up to and including the interlocutory hearing, but ruled against awarding further costs beyond that point. The court also made interim non-publication orders for certain documents related to the case, to be heard urgently by the Duty Judge.

The final orders included the awarding of costs to the Law Society up to and including the interlocutory hearing, while no further costs were awarded. Additionally, interim non-publication orders were made for specific documents, with a requirement for the parties to propose any redactions by a specified date. The applications for non-publication orders were to be listed urgently before the Duty Judge.

Orders

Orders of the court

1. Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act), an interim non-publication order is made limiting disclosure of the reasons for judgment given on 30 August 2024 to the parties, the interested person, the legal representatives of the parties and the interested person, and Court staff until 5pm on 3 September 2024.

2. By midday on Tuesday 3 September 2024, the parties and the interested person are to advise as to whether there are any passages in the reasons for judgment given on 30 August 2024 which they propose be redacted pursuant to s 37AH of the FCA Act and explaining the reasons why by reference to the grounds in s 37AG prior to publication of the reasons.

3. By 4pm on Monday 2 September 2024, the Interested Person is to file and serve the following documents:

(a) the affidavit of Katie Elizabeth Miriam Binstock made on 7 March 2024;

(b) the Interested Person’s submissions in support of the costs application dated 13 March 2024 (costs submissions); and

(c) the Interested Person’s submissions dated 13 November 2023 which are referred to in the costs submissions.

4. Pursuant to s 37AI of the FCA Act, an interim non-publication order is made limiting disclosure of the documents referred to in order 3 above to the parties, the interested person, the legal representatives of the parties and the interested person, and Court staff.

5. Pursuant to s 37AI of the FCA Act, an interim non-publication order is made limiting the disclosure of the following documents to the parties, the interested person, the legal representatives of the parties and the interested person, and Court staff:

(a) the affidavit of Ian Alexander Meagher, sworn 27 March 2024, including its annexure IAM1;

(b) the respondents’ tender bundle dated 12 July 2024; and

(c) the respondents’ submissions, filed 27 March 2024.

6. The interlocutory application for non-publication orders under s 37H of the FCA Act is to be listed urgently in accordance with s 37AI(2) of the FCA Act on a date to be fixed before the Duty Judge.

7. The respondents are to pay the costs of the interested person up to and including the hearing on 13 June 2023.

8. There otherwise be no order as to the costs of the interested person and the respondents including on the application by the interested person for its costs.

THE COURT NOTES THAT:

9. The parties and the interested person are to liaise with a view to reaching agreement on a timetable for the filing of any amended interlocutory application for non-publication orders under s 37H of the FCA Act and for the filing and service of evidence and submissions with respect to the interlocutory application for non-publication orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons set out below, I consider that exceptional reasons have been established by the Law Society warranting an order that the respondents pay its costs up to and including the interlocutory hearing on 13 June 2023. However, I do not consider that it would be in the interests of justice to award costs against the respondents in favour of the Law Society thereafter. Given that the Law Society has been partially successful only on its application for costs, and the respondents have otherwise been successful on that application, I consider that there should be no order as to the costs of this application 2. EVIDENCE The Law Society read the affidavit of Ms Binstock, solicitor, affirmed on 7 March 2024. The respondents read the affidavit of Ian Alexander Meagher, solicitor, affirmed on 27 March 2024. The respondents also tendered a bundle of five documents relating to the ACAT disciplinary proceedings:·ACAT Suppression Order dated 20 February 2024;·ACAT Suppression Order dated 11 April 2024;·ACAT Order dated 28 June 2024;·ACAT reasons dated 27 June 2024;·ACAT reasons dated 28 June 2024. Both the Law Society and the respondents handed up chronologies, which were received as aide memoires.3. INTERIM NON-PUBLICATION ORDERS By the interlocutory application filed on 7 March 2024, the Law Society also seeks orders that: ·the affidavit of Katie Elizabeth Miriam Binstock, affirmed 7 March 2024;·the costs submissions of the interested person, dated 13 March 2024; and·the submissions of the interested person dated 13 November 2023, which are referred to in the costs submissions;be marked and treated as confidential, including for the purpose of r 2.32(3) of the Federal Court Rules of 2011 (Cth). These documents were provided by the Law Society by email on 13 March 2024 to the Chambers of Justice Kennett, who was the then docket judge, together with the submissions of the Interested Person dated 13 November 2023. In the email, the Law Society stated that, out of an abundance of caution, the affidavit and submissions would not be filed in the on-line registry in view of the application that these documents be treated as confidential. In email correspondence dated 29 August 2024, the respondents also sought an interim non-publication order, pursuant to s 37AI of the FCA Act with respect to: ·the affidavit of Ian Alexander Meagher, sworn 27 March 2024, including its annexure IAM1;·the respondents’ tender bundle dated 12 July 2024; and·the respondents’ submissions, filed 27 March 2024on the basis that these documents may give rise to the same concern as that intended to be addressed by the interim non-publication order sought by the Law Society for their court documents. I am satisfied that it is appropriate to make interim orders under s 37AI of the FCA Act for the non-publication of the documents referred to at [7]–[8] above. The hearing of the applications for non-publication orders by the respondents and the interested party is to be listed on a date to be fixed, bearing in mind that such an application should be heard as a matter of urgency in accordance with s 37AI(2). As I will be taking long-service leave for a period after making these orders, it will be necessary for those applications to be heard by the Duty Judge. 4. FACTUAL FINDINGS

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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