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

Details

AGLC: Easterday, Clark Ervin v Australian Securities Commission [1996] FCA 793
Case: [1996] FCA 793
Decision Date: 4 SEPTEMBER 1996

CaseChat Overview and Summary

Clark Ervin Easterday applied for an assessment of costs in lieu of taxation, as per the Federal Court Rules, against the Australian Securities Commission and the Australian Stock Exchange Limited. The application was made following the dismissal of his proceedings against the respondents. The respondents filed submissions on the amount of costs to be awarded, and the applicant filed an affidavit in response. The court had to determine whether the respondents were entitled to their costs, the amount of those costs, and if any orders should be made to protect the applicant from potential consequences of not paying the awarded costs.

The court considered the submissions and the affidavit from the applicant, noting that the applicant was no longer entitled to remuneration or a weekly allowance under a mareva injunction over his assets. However, these circumstances did not affect the entitlement of the respondents to their costs. The court exercised its discretion to fix the costs in a certain sum to reduce expense, delay, and aggravation, as permitted under O62 r4(2)(c) of the Federal Court Rules. The court fixed the costs for the Australian Securities Commission at $1,566.00 and for the Australian Stock Exchange Limited at $2,281.00, as these amounts were not challenged by the applicant.

The applicant requested that the court make orders to protect him from actions for contempt, bankruptcy, or further orders for costs if the respondents sought to vary the mareva injunction to enable the payment of costs. The court found that such orders could not be made in this proceeding and would need to await an appropriate occasion, if it arose.

The court ordered that Clark Ervin Easterday pay the costs of the Australian Securities Commission and the Australian Stock Exchange Limited in the amounts of $1,566.00 and $2,281.00, respectively.

Orders