Birdseye v Australian Securities and Investments Commission [2003] FCAFC 265
COSTS – appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – applicant applied to vary costs order to exclude costs of respondent’s notice of alternative contention – whether ordinary rule that costs follow the event should be departed from
NICHOLAS BIRDSEYE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION S 399 of 2003
BRANSON, MARSHALL and STONE JJ 25 NOVEMBER 2003 SYDNEY (HEARD IN ADELAIDE)
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 399 of 2003
BETWEEN:
NICHOLAS BIRDSEYE APPLICANT
AND:
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT
JUDGES:
BRANSON, MARSHALL and STONE JJ
DATE OF ORDER:
25 NOVEMBER 2003
WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)
THE COURT ORDERS THAT the motion to vary order 2 of the orders made on this matter on 21 October 2003 be dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 399 of 2003
BETWEEN:
NICHOLAS BIRDSEYE APPLICANT
AND:
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT
JUDGES:
BRANSON, MARSHALL and STONE JJ
DATE:
25 NOVEMBER 2003
PLACE:
SYDNEY (HEARD IN ADELAIDE)
REASONS FOR JUDGMENT
THE COURT
On 21 October 2003 the Court published judgment in this matter (Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232). The orders then made were:
‘1. The application be dismissed.
2.The applicant pay the respondent’s costs.’
Pursuant to leave granted on that day, the applicant has moved to vary order 2 above by the addition of the following words ‘such costs not to include any costs of the Notice of Alternative Contention’. The respondent opposes the variation sought.
It is not necessary here to set out the history of this matter or details of the contentions advanced by the parties. They can be read in the Court’s earlier judgment. In short, the applicant’s appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) failed. The Notice of Alternative Contention filed by the respondent raised the issue of whether the Tribunal had power, as it had concluded that it did, to review the decision of the respondent the subject of the application before it. The Court found it unnecessary to determine that issue.
The filing of a notice in compliance with O 52 r 22(3) of the Federal Court Rules was the likely outcome of the filing of the applicant’s notice of appeal. It has not been suggested that it was unreasonable for the respondent to file the notice. The merits of the contention set out in the notice have not been determined. The applicant’s appeal, on the other hand, was wholly unsuccessful. Any endeavour by a taxing officer to separate the costs of the notice from the other costs of the application is likely to be fraught with difficulty and itself to be productive of additional costs.
In our view no reason has been shown why the ordinary rule that costs should follow the event should be departed from (see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11]). Indeed, as is mentioned above, any such departure would be likely to be productive of additional costs.
The motion to vary order 2 of the orders made on this matter on 21 October 2003 is dismissed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 25 November 2003
Submissions for the Applicant:
Mr G Feary
Solicitor for the Applicant:
Iles Selley Lawyers
Submissions for the Respondent:
Ms C Francas
Solicitor for the Respondent:
Australian Securities & Investments Commission
Date of Filing Last Written Submissions:
6 November 2003
Date of Judgment:
25 November 2003
Details
AGLC
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 265
Case
[2003] FCAFC 265
Decision Date
CaseChat Overview and Summary
In the matter of Birdseye v Australian Securities and Investments Commission, the applicant, Nicholas Birdseye, sought to vary a costs order that required him to pay the respondent's costs. The application was made following a failed appeal by Birdseye against a decision of the Administrative Appeals Tribunal (AAT). The respondent, Australian Securities and Investments Commission (ASIC), opposed the variation. The Federal Court of Australia, comprising Branson, Marshall, and Stone JJ, heard the motion in Sydney, with the case originating from Adelaide.
The legal issue before the court was whether the ordinary rule that costs follow the event should be departed from, such that the costs of the respondent's Notice of Alternative Contention would be excluded from the costs payable by the applicant. The applicant argued that the filing of the Notice of Alternative Contention by the respondent was not unreasonable, and it had not been determined on its merits. However, the court found that the applicant's appeal had been wholly unsuccessful, and any attempt to separate the costs of the notice from the other costs of the application would likely result in additional costs.
The court referred to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, which held that no reason had been shown to justify departing from the ordinary rule that costs should follow the event. The court further noted that any such departure would likely result in additional costs. Therefore, the motion to vary the costs order was dismissed, and the applicant remained liable for the respondent's costs.
The final orders of the court were that the motion to vary order 2 of the orders made on 21 October 2003 be dismissed. This meant that the applicant, Nicholas Birdseye, remained liable for the respondent's costs, as initially ordered by the court.