Dalglish v MDRN Pty Ltd (No.3)

In *Dalglish v MDRN Pty Ltd (No.3)*, Judge Cassidy of the Federal Circuit Court of Australia considered an application to vary previous costs orders. The dispute arose from an earlier decision where the Court had ordered costs for both Common Law claims and Fair Work Act claims, attributing 50% of the proceedings to each. The respondent sought to clarify and vary these orders, arguing that the intention was for the applicant to pay 100% of the respondent's costs, with one half of those costs referable to the Common Law claims and the remaining half to the Fair Work Act claims.

The primary legal issue before the Court was whether the previous costs orders should be varied to reflect the respondent's interpretation of the Court's intention. This involved determining if the original order was ambiguous and if the respondent had discharged the onus to vary the orders by demonstrating the clear intention of the Court. A secondary issue concerned whether the costs should be referred for taxation under the Federal Court Rules 2011, which allows for costs to be ordered at a higher rate.

Judge Cassidy reasoned that while orders under Rule 16.05 of the Federal Circuit Court Rules 2001 are made with caution, the respondent had discharged the onus to vary the orders as the intention was clear from the judgment. The Court found that the original order had created an ambiguity for the applicant and that the respondent's proposed variation accurately reflected the Court's intent. The Court also addressed the taxation of costs, noting that the previous order was a standard order for costs in accordance with the Federal Circuit Court Rules, not an order for taxation under the Federal Court Rules.

Consequently, the Court made orders discharging the previous costs orders of 29 August 2014 and substituting them with new orders. The applicant was ordered to pay 100% of the respondent's costs, with one half of those costs attributed to the Common Law claims and the remaining half to the Fair Work Act claims. The Court also clarified that the costs were to be taxed in accordance with the standard Federal Circuit Court Rules, not on the higher Federal Court scale.