FEDERAL COURT OF AUSTRALIA
Lanzer v Australian Broadcasting Corporation (No 2) [2021] FCA 1321
File number: NSD 1084 of 2021 Judgment of: NICHOLAS J Date of judgment: 27 October 2021 Catchwords: COSTS – where applicants brought application for urgent interlocutory relief seeking injunction against the first respondent – where application dismissed on basis that applicants had failed to establish a prima facie case for relief sought – whether applicants should pay first respondent’s costs of the interlocutory application
Held: applicants ordered to pay first respondent’s costs
Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Athavle v State of New South Wales [2021] FCA 1075
Boyd v Wild Hibiscus Flower Company Pty Ltd (No 2) [2012] FCA 74
Brigthen Pty Limited v Nine Network Australia Pty Limited & Ors [2009] NSWSC 319
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v the Macedonian Orthodox Community Church St Petka Incorporated & Anor(No 2) [2007] NSWCA 142
Lincoln Hunt Australia Pty Ltd v Willesee & Ors (1986) 4 NSWLR 457
Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 23 Date of hearing: Determined on the papers Counsel for the Applicants: Mr B McClintock SC with Mr T Senior Solicitor for the Applicants: Mark O’Brien Legal Counsel for the First Respondent: Dr MJ Collins QC with Mr S Mukerjea Solicitor for the First Respondent: ABC Legal Counsel for the Second and Third Respondents The second and third respondents did not appear ORDERS
NSD 1084 of 2021 BETWEEN: DANIEL LANZER
First Applicant
DERMATOLOGY AND COSMETIC SURGERY SERVICES PTY LTD
Second Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
First Respondent
JUSTIN NIXON
Second Respondent
LAUREN HEWISH
Third Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS THAT:
1.The applicants pay the first respondent’s costs of and incidental to the applicants’ application for interlocutory relief as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
BACKGROUND
Last week I made an order dismissing the applicants’ application for an interlocutory injunction (Lanzer v Australian Broadcasting Corporation [2021] FCA 1283). In my reasons I stated that it was my provisional view that the applicants should pay the first respondent’s costs of the interlocutory application. At the time of giving judgment the applicants indicated that they wished to be heard in relation to costs and they were given an opportunity to file a written submission which they have now done.
THE APPLICANTS’ SUBMISSIONS
The applicants acknowledged in their written submission that the Court has a broad and unfettered discretionary power to award costs. They also stated (correctly) that the discretion must…
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- Case
- [2021] FCA 1321
- Decision Date
CaseChat Overview and Summary
The court’s reasoning was that the usual rule concerning costs in interlocutory applications is not determinative in cases where the applicant fails to establish a prima facie case. The court found that the case law cited by the applicants did not support their argument that the costs should be costs in the cause. The court emphasised that the matter of costs is within the discretion of the court, guided by settled principles but not necessarily determined by them. The court distinguished the present case from those where the applicant demonstrated an arguable case but the balance of convenience weighed against the grant of relief. In this case, the applicants did not demonstrate any entitlement to relief, and therefore, the court exercised its discretion to order the applicants to pay the first respondent’s costs. The court found that this outcome was consistent with the broad discretion provided under section 43 of the Federal Court of Australia Act 1976 (Cth). The applicants' submissions were rejected, and the court ordered that the applicants pay the first respondent’s costs of and incidental to the interlocutory application as taxed or agreed.
Orders
Orders of the court
1. The applicants pay the first respondent’s costs of and incidental to the applicants’ application for interlocutory relief as taxed or agreed.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Finally, the applicants submitted that they were successful in resisting the first respondent’s “wholesale objection” to the notice to produce referred to in my reasons, which ultimately resulted in the production of the documents admitted into evidence as Exhibit A, which the first respondent undertook not to publish.CONSIDERATION I do not consider it productive to enquire into what might be considered the “usual rule” in respect of costs following a contested application for an interlocutory injunction. What is clear, however, is that the New South Wales Court of Appeal’s decision in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand is not authority for the proposition that the “usual rule” or “usual practice” is that the costs of an interlocutory application be costs in the cause. The applicants’ submissions overlook the words which I have emphasised at [5] above. Clearly, the Court of Appeal was not concerned with a situation in which the plaintiff had failed to establish a prima facie case. The question of costs is a matter in the discretion of the Court. Section 43 of the Federal Court of Australia Act 1976 (Cth) gives a very broad discretion to a Judge considering the question of costs. Settled principles guide but do not necessarily determine the exercise of the discretion. A distinguishing feature of the present case is that the applicants failed to establish a prima facie case. This is not a case in which the applicants demonstrated that they had a prima facie entitlement to relief but that the balance of the convenience weighed against the grant of interlocutory relief. The applicants did not obtain any of the interlocutory orders they sought nor any more modest relief that I may have been inclined to grant had the applicants demonstrated the existence of an arguable case. As previously mentioned, the applicants also relied on the decision of Johnson J in Brigthen Pty Limited v Nine Network Australia Pty Limited who at [22] cited the judgment of Young J in Lincoln Hunt and suggested that, prima facie, the ordinary rule would be that the costs of both parties should be costs in the cause. In Brigthen Pty Limited v Nine Network Australia Pty Limited, the application for an interlocutory injunction was rejected by Johnson J on the basis that there was no prima facie case and that, even if there was, damages would be an adequate remedy. Curiously, the order actually made by his Honour was that costs be reserved: see [23]. As to the decision of Young J in Lincoln Hunt, that was a case in which his Honour was satisfied that the plaintiff had demonstrated a prima facie case but where his Honour considered damages would provide the plaintiff with an adequate remedy. His Honour said at 465 that he would hear the parties on the question of costs but that “… it seems to me prima facie that the ordinary rule in these sorts of applications should apply, that is, that the costs of both parties on the application should be costs in the cause …”. Contrary to the applicants’ submission, Lincoln Hunt is not authority as to the appropriate order for costs where an applicant’s application for an interlocutory injunction is dismissed on the basis that no prima facie case was established.