Kennedy v Wallace

[2004] FCA 621

FEDERAL COURT OF AUSTRALIA

Kennedy v Wallace [2004] FCA 621

TREVOR JOHN KENNEDY v ANDREW CHARLES VERSCHUER WALLACE, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE
N 3065 OF 2003

GYLES J
26 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3065 OF 2003

BETWEEN:

TREVOR JOHN KENNEDY
APPLICANT

AND:

ANDREW CHARLES VERSCHUER WALLACE
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
SECOND RESPONDENT

COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE
THIRD RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

26 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Each party bear its own costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3065 OF 2003

BETWEEN:

TREVOR JOHN KENNEDY
APPLICANT

AND:

ANDREW CHARLES VERSCHUER WALLACE
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
SECOND RESPONDENT

COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE
THIRD RESPONDENT

JUDGE:	GYLES J
DATE:	26 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. As far as costs are concerned I will not deal now with the costs of the motion involving Mr Rivkin.  That is a separate issue.  I am inclined to the view that the costs of the notices of motion that have been identified by Mr Wood should be seen as part of the overall preparation for, and conduct of, the case.  They were intimately tied up with a number of issues and were not always dealt with in a formal way because other rulings overtook them.

2. I am inclined to think that the appropriate order for costs is that each party should bear its own costs as submitted by Mr Wood.  I take that view because, on the proceeding as originally framed, the respondents – and particularly the second respondent which has carried the burden of the defence – have had success.  On the other hand there was a number of aspects to the case and, in particular, some of the notices of motion to which reference has been made, in respect of which it can be said that the applicant had a fair measure of success by reference to particular rulings concerning matters that took up substantial time prior to and during the hearing.

3. More importantly however, from 4 February on, the case has been one brought by the applicant which simply has succeeded and there is a significant argument that the applicant is entitled to his general costs of the action thereafter.  In most cases if part of the relief is obtained then the party who obtains that relief gets the general costs of the action.  It is a little more complicated here because that was an issue which came in later in the piece and at a time a when considerable costs had already been incurred.

4. A particular application has been made on behalf of the second respondent for the costs of the extended relief sought in paragraph 3B of the application – relief which was not ultimately pressed.  I am not satisfied that there is a case for a special order for costs in relation to that relief.  It was relief which, on its face, was not hopeless. There is support in the authorities for that type of relief to be granted in an appropriate case.  I cannot detect any particular costs which were incurred as a result of it, because the parties who were concerned with the investigation by and large were called upon to give evidence in any event.

5. Balancing the various factors to which I have referred, it seems to me that the appropriate order is that each party bear its own costs and that is the order I make.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            1 June 2004

Counsel for the Applicant:	PM Wood; J Stoljar
Solicitor for the Applicant:	Arnold Bloch Leibler
Solicitor for the First and Third Respondents:	J Pownall of Australian Government Solicitor
Counsel for the Second Respondent:	M Sneddon
Solicitor for the Second Respondent:	PN Riordan
Date of Hearing:	26 March 2004
Date of Judgment:	26 March 2004