Dunstan v Higham (No 3)

[2020] ACTCA 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Dunstan v Higham (No 3)

Citation:

[2020] ACTCA 50

Hearing Date:

15 October 2020

DecisionDate:

3 November 2020

Before:

Mossop J

Decision:

See [61]

Catchwords:

PRACTICE AND PROCEDURE – COSTS – Security for costs – appellant ordered to pay $30,000 as security for costs for an appeal to the Court of Appeal – appeal was dismissed and costs order made against the appellant – money paid into court but never paid out – competing applications – application by the appellant that the security for costs order be set aside – no special circumstances – application dismissed

PRACTICE AND PROCEDURE – COSTS – Security for costs – application by the respondents to fix the amount payable pursuant to the costs order made by the Court of Appeal at $30,000 – application for the security to be applied to satisfy that order – respondents’ recoverable costs are much greater than $30,000 – appropriate to fix the costs of the appeal and related proceedings at $30,000 and allow the security held in court to be paid out to the respondents

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 1720(3), 1905, 1906, 6719, Div 2.17.8

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 112(3)

Cases Cited:

Dunstan v Comcare [2014] AATA 208; 139 ALD 691

Dunstan v Higham [2016] ACTCA 20; 310 FLR 58
Dunstan v Higham [2016] HCASL 308
Dunstan v Higham (No 2) [2016] ACTCA 28
Dunstan v Higham & Ors [2014] ACTSC 206

Waters v Commonwealth (Australian Taxation Office) [2017] FCA 312

Texts Cited:

Bernard Murphy, ‘The Problem of Legal Costs: Lump Sum Costs Orders in the Federal Court’ (Conference Paper, The National Costs Law Conference, 17 February 2017)

Parties:

Colin Dunstan (Appellant)

John Higham (First Respondent)

John Growder (Second Respondent)

Robyn Orr (Third Respondent)

Richard Highfield (Fourth Respondent)

Geoff Seymour (Fifth Respondent)

Commonwealth of Australia (Sixth Respondent)

Representation:

Counsel

Self-represented (Appellant)

M Hassall (Respondents)

Solicitors

Self-represented (Appellant)

Clayton Utz (Respondents)

File Number:

ACTCA 48 of 2014

MOSSOP J:

Introduction

1. There are two competing applications before me dealing with $30,000 which had been paid into court by the appellant, Mr Colin Dunstan, as security for costs for an appeal to the Court of Appeal. The order for security for costs was made by Penfold J on 4 March 2015.  The appellant’s appeal to the Court of Appeal was dismissed with costs: Dunstan v Higham [2016] ACTCA 20; 310 FLR 58.

1. Following the dismissal of the appellant’s appeal and the dismissal of an application for special leave to appeal to the High Court from that decision, the respondents did nothing to have their costs assessed and took no other steps that would permit the $30,000 to be paid out to them.  The money simply remained with the court.  In early 2020 the Registrar wrote to the parties asking what should be done with the $30,000.  Although the parties had done nothing for many years, once…