Dyer v Chrysanthou (No 3) (Costs)

FEDERAL COURT OF AUSTRALIA

Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642  

File number:

NSD 426 of 2021

Judgment of:

THAWLEY J

Date of judgment:

11 June 2021

Catchwords:

COSTS – where applicant successful in substantive proceedings – whether first respondent should not be ordered to pay costs – where the first respondent filed a submitting notice – whether the second respondent should be ordered to pay 70% of the applicant’s costs – where the second respondent contended the applicant filed evidence late, which was analogous to an amendment – first and second respondents ordered to pay the applicant’s costs

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43

Evidence Act 1995 (Cth) s 135

Cases cited:

Australian Securities and Investment Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170

Dyerv Chrysanthou [2021] FCA 578

Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641

Gray v Richards (No 2) (2014) 315 ALR 1

Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645

Lo v Australian Community Pharmacy Authority [2013] FCA 639

Ruddock v Vadarlis (No 2) (2001) 115 FCR 229

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

9

Date of last submission:

3 June 2021

Date of hearing:

Determined on the papers

Counsel for the Applicant:

M Hodge QC with S Chordia

Solicitor for the Applicant:

Marque Lawyers

Counsel for the First Respondent:

N Hutley SC with J McKenzie

Solicitor for the First Respondent:

Kennedys

Counsel for the Second Respondent:

C Withers SC with E Bathurst

Solicitor for the Second Respondent:

Company Giles

ORDERS

NSD 426 of 2021

BETWEEN:

JOANNE ELIZABETH DYER

Applicant

AND:

SUE CHRYSANTHOU SC

First Respondent

THE HON CHARLES CHRISTIAN PORTER

Second Respondent

ORDER MADE BY:	THAWLEY J
DATE OF ORDER:	11 JUNE 2021

THE COURT ORDERS THAT:

1.The first and second respondents pay the applicant’s costs of the proceedings

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

REASONS FOR JUDGMENT

THAWLEY J:

1. These reasons address the question of costs consequent upon the success of the applicant in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641. Familiarity with those reasons is assumed.

2. The first respondent, Ms Chrysanthou SC, contended that she should not be ordered to pay costs, submitting that:

   (1)once Ms Dyer commenced these proceedings, Ms Chrysanthou took a neutral position as an officer of the Court submitting to the orders as the Court deemed fit;

   (2)Ms Chrysanthou took no active part in the conduct of the proceeding.  She was required to file a concise response and an affidavit which set out relevant background matters and her recollection of the conference held on 20 November 2020, and she filed both documents;

   (3)No substantive submissions were filed or made on behalf of Ms Chrysanthou.  Her opening submissions reiterated that she would not advance any position on the dispute, and no closing submissions were made.

3. As to the…