FEDERAL COURT OF AUSTRALIA
VDCL v Purcell [2024] FCA 107
File number(s): VID 619 of 2023 Judgment of: HORAN J Date of judgment: 22 February 2024 Catchwords: COSTS – leave to discontinue proceedings – costs of discontinued proceeding – discontinuing party liable for costs under r 26.12(7) of the Federal Court Rules 2011 (Cth) unless terms of a consent or an order of the Court provide otherwise – where discontinuing party seeks order that each party bear their own costs – whether good reason for Court to order otherwise under r 26.12(7) – where proceeding discontinued by applicant due to lack of financial means – where applicant acted reasonably in conduct of proceeding – whether applicant’s impecuniosity amounts to good reason to order that each party bear their own costs – applicant liable to pay respondents’ costs Legislation: Australian Crime Commission Act 2002 (Cth) ss 7C(2), 28
Federal Court of Australia Act 1976 (Cth) s 43(2)
Federal Court Rules 2011 (Cth) r 26.12
Cases cited: Armstrong v Australian Community Pharmacy Authority [2012] FCA 577
Australian Securities and Investments Commission v Diploma Group Limited (No 3) [2017] FCA 891
Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905
El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474; 141 ALD 611
Francis v Allen & Unwin (No 2) [2015] FCA 229
Harvey Norman Holdings Limited v Fels [2002] FCA 13; ATPR 41-852
Lo v Australian Community Pharmacy Authority [2013] FCA 639
O’Neill v Mann [2000] FCA 1680
Primary Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382
Travaglini v Raccuia [2012] FCA 620
Zhao v Ausin Group (Australia) Pty Ltd (No 2) [2023] FCA 498
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of last submissions: 15 December 2023 (Applicant)
18 December 2023 (Respondent)Date of hearing: Determined on the papers Solicitor for the Applicant: Radovic Lawyers Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 619 of 2023 BETWEEN: VDCL
Applicant
AND: ANDREW PURCELL
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The applicant be granted leave to file a notice of discontinuance no later than 14 days from the date of this order.
2.The applicant pay the respondents’ costs of the proceeding, including the application for leave to file the notice of discontinuance, to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J:
By an originating…
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- AGLC
- VDCL v Purcell [2024] FCA 107
- Case
- [2024] FCA 107
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the applicant’s financial difficulties constituted good reason for the court to deviate from the general rule that the discontinuing party bears the costs of the proceeding. The court examined the circumstances surrounding the discontinuance, including the applicant’s conduct in the proceeding and whether there was any contribution or unreasonable conduct by the respondent. The court found that while the applicant did not provide evidence of their financial position, it was reasonable to assume that financial constraints were the primary reason for the discontinuance. However, the court concluded that the respondent was not responsible for the applicant's financial situation, and there was no indication of unreasonable conduct by the respondent. The applicant had not demonstrated any good reason to warrant the court ordering that each party bear their own costs.
The court ruled that the applicant would be granted leave to discontinue the proceeding, but this would not affect the applicant's liability to pay the respondent's costs. The court made an order reflecting the terms of Rule 26.12(7), which required the applicant to pay the respondent's costs of the proceeding, including the application for leave to discontinue. This decision underscored the principle that financial hardship alone does not suffice as good reason to alter the usual cost consequences of discontinuance.
The final orders included granting the applicant leave to file a notice of discontinuance within 14 days and requiring the applicant to pay the respondent’s costs, to be taxed if not agreed upon. This outcome ensured that the financial burden of the proceeding would not be shifted from the discontinuing party without a compelling reason.
Orders
Orders of the court
1. The applicant be granted leave to file a notice of discontinuance no later than 14 days from the date of this order.
2. The applicant pay the respondents’ costs of the proceeding, including the application for leave to file the notice of discontinuance, to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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