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: 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
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:
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.
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.
As to the…
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- Case
- [2021] FCA 642
- Decision Date
CaseChat Overview and Summary
The court considered that the procedural conduct of the parties played a crucial role in determining the costs. The court noted that the first respondent filed a submitting notice, which is a formal acknowledgment of the applicant's success in the substantive proceedings. Despite this, the court found that the procedural conduct of the first respondent did not warrant an exemption from costs. Regarding the second respondent, the court assessed the contention that the applicant’s late filing of evidence was analogous to an amendment. However, the court concluded that the second respondent's contention did not sufficiently justify an order for the applicant to bear a significant portion of the costs. The court found that both the first and second respondents' conduct warranted an order for them to pay the applicant's costs.
Consequently, the court ordered that the first and second respondents pay the applicant's costs of the proceedings. The decision was based on the procedural conduct of the parties and the lack of substantial justification for the second respondent's contention regarding the late filing of evidence. The court's ruling underscores the importance of adherence to procedural requirements and the consequences of failing to act in accordance with court-imposed deadlines. The orders made reflect the court's assessment of the overall conduct of the parties and the need for proportionality in the allocation of costs.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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