Vasyli v AOL International Pty Ltd

In the matter of Anthony Vasyli v AOL International Pty Ltd & Anor, the applicant sought leave to tax and pay forthwith the costs of an interlocutory proceeding. The case was before Lehane J in the Federal Court of Australia, New South Wales District Registry, General Division. The respondents applied for an order under Order 62 rule 3 of the Federal Court Rules to assess or tax their costs forthwith and for payment forthwith of those costs, as well as an order staying the proceedings pending payment of the whole of those costs. The legal issue before the court was whether the circumstances of the case warranted an exception to the ordinary rule that costs of interlocutory proceedings are usually deferred until the conclusion of the main proceedings.

The court considered the arguments of both parties. The applicant argued that the motion was premature and should be dealt with once the 28 days had expired and the applicant had either filed and served an amended statement of claim or not. The respondents argued that the motion should be allowed on several bases, including the applicant's failure to take action to amend the statement of claim despite warnings, the significant difference between the current and any future statement of claim, and the need for protection for the respondents who were residents outside the jurisdiction. The court concluded that this was a case outside the ordinary rule and made an order for taxation and payment forthwith, as well as granting liberty to apply on the same terms as those granted on 19 August. The application for a stay was refused as it would be inappropriate to deprive the applicant of the opportunity to file and serve an amended statement of claim.

The final orders of the court were that the respondents have leave to assess or tax their costs forthwith, including the respondents' costs from the date their solicitors made a formal request for particulars of the statement of claim, and that the said costs be paid forthwith after taxation or assessment. The costs of the motion were reserved, and the parties were granted liberty to apply on three days' notice.