FEDERAL COURT OF AUSTRALIA
Hillier v Martin (No 21) [2024] FCA 546
File number(s): SAD 113 of 2020 Judgment of: O'SULLIVAN J Date of judgment: 24 May 2024 Catchwords: COSTS — variation of costs order — where orders made that the fourth, fifth and sixth respondents pay the costs of and incidental to the applicant’s interlocutory application — where fourth, fifth and sixth respondents seek a variation to costs order — whether payment of costs is unjust and does not properly reflect the role of the parties having regard to the circumstances of the interlocutory application — application for variation of costs order granted — order reducing the amount of the applicant’s costs payable by the fourth, fifth and sixth respondents to 80% Legislation: Federal Court of Australia Act 1976 (Cth), s 43(2) Cases cited: Hillier v Martin (No 19) [2024] FCA 210
Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750
Hughes v Western Australian Cricket Assn Inc [1986] FCA 465; (1986) 19 FCR 10; [1906] ATPR 40-748 at 48, 136Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 41 Date of last submission: 10 May 2024 Date of hearing: Determined on the papers Counsel for the Applicant: Mr R Whitington KC with Ms H Doyle Solicitor for the Applicant: Sykes Bidstrup Counsel for the First and Second Respondents: No appearance Counsel for the Third Respondent: No appearance Counsel for the Fourth, Fifth and Sixth Respondents: Mr D Blight KC with Mr T Kentish Solicitor for the Fourth, Fifth and Sixth Respondents: Gilchrist Connell ORDERS
SAD 113 of 2020 BETWEEN: JAMES HILLIER
Applicant
AND: VICTORIA MARTIN
First Respondent
NORDBURGER OPERATIONS PTY LTD
Second Respondent
ERIK VARI PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
24 MAY 2024
THE COURT ORDERS THAT:
1.The fourth to sixth respondents pay 80% of the applicant’s costs of and incidental to the applicant’s interlocutory application filed 15 August 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
On 8 March 2024, I delivered judgment in Hillier v Martin (No 19) [2024] FCA 210. That decision dealt with two matters:
(a)An interlocutory application filed by the applicant (Mr Hillier) on 15 August 2023 for orders that documents claimed by the fourth to sixth respondents (together NW Parties) to be the subject of legal professional privilege in favour of the first respondent (Ms Martin) and any entity or entities simply described as “Nordburger” are not the subject of the privilege (Iniquity Application); and
(b)An application by Ms Martin filed 24 November 2023 seeking orders that, amongst other things, I recuse myself from hearing the interlocutory application and the matter generally (Recusal Application). The Recusal Application had been filed after argument on the Iniquity…
Keep reading for free
Create a free CaseChat account to read Hillier v Martin (No 21) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2024] FCA 546
- Decision Date
CaseChat Overview and Summary
The court considered the submissions made by the respondents, including the argument that the application was inevitable regardless of their position, and the length and complexity of the applicant's submissions. The court found that while some of the respondents' arguments were valid, their overall role in the application was not neutral, as they actively opposed the application contrary to their initial position. The court determined that the costs order should be varied to reflect the partial success of the respondents and their involvement in the application, resulting in an order that the respondents pay 80% of the applicant's costs of and incidental to the interlocutory application.
In light of the findings, the court made an order reducing the amount of the applicant's costs payable by the fourth, fifth and sixth respondents to 80%. This order was made to reflect the partial success of the respondents on certain issues and their involvement in the interlocutory application. It is important to note that the costs of the adjourned hearing before a Registrar on 6 September 2023 are reserved and not included in this costs order. The court's decision was based on a careful consideration of the parties' submissions and the circumstances of the case, resulting in a costs order that more accurately reflects the roles and responsibilities of the parties in the interlocutory application.
Orders
Orders of the court
1. The fourth to sixth respondents pay 80% of the applicant’s costs of and incidental to the applicant’s interlocutory application filed 15 August 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It is for the reasons which follow that there will be an order reducing the amount of the applicant’s costs payable by the NW Parties to 80% of those costs. It is for the avoidance of doubt that those costs do not include the costs thrown away of the adjourned hearing before a Registrar on 6 September 2023.The parties’ submissions and consideration The NW Parties seek a different order as to costs on four grounds. First, they submitted the Iniquity Application was inevitable irrespective of the position they took because it was required due to the maintenance of a claim of privilege by the first and second respondents and their opposition to the Iniquity Application. On that basis, and regardless of the position adopted by the NW Parties, argument was inevitable such that the applicant’s costs of the Iniquity Application are not referable to any conduct of the NW Parties. Whereas I accept that argument on the Iniquity Application was inevitable, nonetheless the role the NW Parties took, contrary to what they submitted, was to actively oppose the application notwithstanding their initial position of neutrality. Second, the NW Parties submitted that the length of the hearing (some two and half days) was as a result of the applicant bearing the burden of satisfying the Court of the existence of prima facie evidence of iniquity. They submitted that in the absence of the first and second respondents appearing at the hearing, it was appropriate and necessary for the NW Parties to address and assist the Court in relation to such matters, including by reference to the Protocol that had been reached between the NW Parties and the first and second respondents: ninth affidavit of Fiona Mary Errington sworn and filed 31 August 2023, annexure FME 7. The NW Parties submitted that the application took longer than originally listed because of the length and complexity of the applicant’s submissions, and in particular the applicant’s challenge to the particulars of the claims for privilege of the first and second respondents on the face of the NW Parties’ list of documents. I accept those submissions. However, the NW Parties went further than taking a position of neutrality and argued actively against the application. The NW Parties submitted further that given the seriousness of a finding that legal professional privilege did not arise in circumstances where there is an allegation of a dishonest plan involving the fourth respondent, the applicant’s counsel was obliged to consider the material at length to establish prima facie evidence to give colour to the charge of iniquity. They submitted that given such an approach was warranted, the time taken for the hearing was a necessary consequence of the nature of the application and not a consequence of the NW Parties’ involvement at the hearing. In the overall context, the time taken by the NW Parties was significantly less than that taken by the applicant. I accept the submission that the applicant’s counsel was obliged to consider the material at length however, as I explain below, the position taken by the NW Parties was not neutral.