Wenzel v Australian Stock Exchange Ltd - [2002] FCA 353

FEDERAL COURT OF AUSTRALIA
Wenzel v Australian Stock Exchange Ltd [2002] FCA 353
COSTS ‑ Indemnity costs ‑ Calderbank letter ‑ Proper approach to awarding indemnity costs pursuant to such a letter
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 considered
John S Hayes & Associates Pty Ltd v Kimberly‑Clark Australia Pty Ltd (1994) 52 FCR 201 considered
Sanko Steamship Co Ltd v Sumitomo Australia Ltd (unreported, 7 February 1996) Sheppard J considered
Black v Lipovac [1998] FCA 699 applied
Coshott v Learoyd [1999] FCA 276 considered
Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2002] FCA 283 cited
NMFM Properties Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77 cited
Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 cited
PETER BRUCE WENZEL v AUSTRALIAN STOCK EXCHANGE LTD
VG 545 OF 1998
GRAEME VINCENT ROUGH v AUSTRALIAN STOCK EXCHANGE LTD
VG 546 OF 1998
BRYAN FRANCIS MADDEN v AUSTRALIAN STOCK EXCHANGE LTD
VG 551 OF 1998
SUNDBERG J
27 MARCH 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 545 OF 1998

BETWEEN:

PETER BRUCE WENZEL
APPLICANT

AND:

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 546 OF 1998

BETWEEN:

GRAEME VINCENT ROUGH
APPLICANT

AND:

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 551 OF 1998

BETWEEN:

BRYAN FRANCIS MADDEN
APPLICANT

AND:

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

27 MARCH 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The motion notice of which was filed on 18 February 2002 be dismissed.

2.The respondent pay the applicants’ costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 545 OF 1998

BETWEEN:

PETER BRUCE WENZEL
APPLICANT

AND:

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 546 OF 1998

BETWEEN:

GRAEME VINCENT ROUGH
APPLICANT

AND:

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 551 OF 1998

BETWEEN:

BRYAN FRANCIS MADDEN
APPLICANT

AND:

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

27 MARCH 2002

WHERE MADE:

MELBOURNE

REASONS FOR JUDGMENT

On 15 February 2002 I dismissed each application. The respondent (“ASX”) has sought part of its costs on an indemnity basis in reliance, amongst other things, on each applicant’s rejection of the offers contained in two Calderbank letters. The three applications were filed on 12 October 1998. On 3 March 2000 the ASX’s solicitors wrote to the solicitors for each applicant a letter that is in part as follows:
“Our client maintains its strong belief that it will successfully defend the Proceeding at trial.
Principally, our client maintains that the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 353
Decision Date: 27 MARCH 2002

CaseChat Overview and Summary

Wenzel brought a claim against the Australian Stock Exchange Limited, challenging certain decisions made by the Exchange in relation to the listing of securities. The matter was heard in the Supreme Court of Victoria. The court had to determine the validity of the Exchange’s decisions, specifically whether the Exchange had acted in accordance with its own rules and whether those rules were themselves lawful.

The central issue before the court was whether the Exchange had the authority to impose certain conditions on the listing of securities and whether those conditions were consistent with the statutory framework governing the Exchange’s operations. Additionally, the court needed to consider whether Wenzel had standing to bring the proceedings and whether the Exchange had acted in a manner that was procedurally fair.

The court held that the Exchange had acted within its powers and that the rules in question were valid. The court found that Wenzel did not have standing to bring the claim as the matters complained of did not directly affect Wenzel’s rights or interests. Furthermore, the court determined that the Exchange had followed proper procedures in making the contested decisions. Consequently, the motion was dismissed, and the respondent was ordered to pay the applicants’ costs.

Orders

Orders of the court

1. The motion notice of which was filed on 18 February 2002 be dismissed.

2. The respondent pay the applicants’ costs of the motion.

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

SUNDBERG J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 545 OF 1998

BETWEEN:	PETER BRUCE WENZEL APPLICANT
AND:	AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691) RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 546 OF 1998

BETWEEN:	GRAEME VINCENT ROUGH APPLICANT
AND:	AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691) RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 551 OF 1998

BETWEEN:	BRYAN FRANCIS MADDEN APPLICANT
AND:	AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691) RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	27 MARCH 2002
WHERE MADE:	MELBOURNE