Easterday, Clark Ervin v Australian Securities Commission

[1996] FCA 793

CATCHWORDS

PROCEDURE - costs - assessment in lieu of taxation - application to fix costs

Federal Court Rules, O62 r4(2)(c)

Beach Petroleum NL and Claremont Petroleum NL v Johnson (1995) 57 FCR 119

CLARK ERVIN EASTERDAY v AUSTRALIAN SECURITIES COMMISSION and AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
NO WAG 18 OF 1996

R D NICHOLSON J
PERTH
4 SEPTEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )     NO WAG 18 OF 1996

B E T W E E N:  CLARK ERVIN EASTERDAY

Applicant

and

AUSTRALIAN SECURITIES COMMISSION

First Respondent

AUSTRALIAN STOCK EXCHANGE LTD

(ACN 008 624 691)

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER:     4 SEPTEMBER 1996

WHERE MADE:       PERTH

THE COURT ORDERS THAT:

1. The applicant pay the costs of the first and second respondent.

1. Those costs be fixed in the amounts of $1,566.00 and $2,281.00 respectively.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )     NO WAG 18 OF 1996

B E T W E E N:              CLARK ERVIN EASTERDAY

Applicant

and

AUSTRALIAN SECURITIES COMMISSION

First Respondent

AUSTRALIAN STOCK EXCHANGE LTD

(ACN 008 624 691)

Second Respondent

CORAM:R D NICHOLSON J

DATE:4 SEPTEMBER 1996

PLACE:PERTH

REASONS FOR JUDGMENT

On 26 July 1996 short written reasons were given inviting the second respondent and the applicant to file written submissions on whether costs should be fixed and in what amount.  The first applicant had already filed submissions requesting that costs be fixed in an amount.

Short written submissions dated 2 August 1996 were filed by the second respondent and an affidavit was filed by the applicant dated 5 August 1996.

The applicant's affidavit makes clear he is not entitled to remuneration for his employment and he is no longer entitled to a weekly allowance under the mareva injunction over his assets.  These circumstances were not clear at the giving of my reasons on 26 July 1996.

However, as stated in the reasons of 26 July 1996, these circumstances do not affect the question whether the respondents are entitled to their costs.  These considerations may be relevant to the question of whether the respondents will be able to obtain their costs, but they do not bear on whether the respondents are entitled to their costs and in what amount those costs should be awarded.

In order to reduce expense, delay and aggravation it is appropriate in this case that the Court exercise the discretion conferred on it by O62 r4(2)(c) of the Federal Court Rules and fix costs in a certain sum: see Beach Petroleum NL and Claremont Petroleum NL v Johnson (1995) 57 FCR 119.

For the first respondent it has been submitted that its costs should be fixed in the amount of $1566.00.  For the second respondent it is submitted its costs should be fixed in the amount of $2281.00.  The applicant has not challenged these amounts in his affidavits in reply.  I therefore fix costs at $1566.00 for the first respondent and $2281.00 for the second respondent.

The applicant invites the Court to make orders directed to protecting him from actions for contempt or bankruptcy if he is unable to pay the costs or from an order for costs if either of the respondents seek to have the mareva injunction varied to enable the costs to be paid.  It is sufficient to state none of these orders could now be made in this proceeding and must await the appropriate occasion arising, if it can or does. 

I certify that this and the preceding page are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:

APPEARANCES

The applicant appeared in person

Counsel for the First Respondent:     Mr J Longo

Solicitors for the First Respondent:  Australian Securities Commission

Counsel for the Second Respondent:      Dr H Schoombee

Solicitors for the Second Respondent:    Australian Stock Exchange

Date of Hearing:  16 May 1996

Date of Judgment:  4 September 1996