FEDERAL COURT OF AUSTRALIA
Wilson v Britten-Jones (No 3) [2021] FCA 63
File number: NSD 214 of 2019 Judgment of: ABRAHAM J Date of judgment: 4 February 2021 Catchwords: COSTS – application for costs to be paid forthwith – where application for leave to commence proceedings refused – where remaining claims are unrelated to application for leave to commence proceedings – where interlocutory application for injunction refused – where notice to produce partly successful –whether good reason exists to depart from ordinary principles Legislation: Australian Human Rights Commission Act 1984 (Cth)
Federal Court Rules 2011(Cth)
Partnership Act 1891 (SA)
Cases cited: Allstate Life Insurance Co vAustralia and New Zealand Banking Group Ltd (No 13) [1995] FCA 1459
Bailey v Beagle Management Pty Ltd [2001] FCA 60; 105 FCR 136
Courtney v Medtel Pty Limited (No 3) [2004] FCA 347
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19
Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545
The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 2) [2020] FCA 333
Wilson v Britten-Jones [2019] FCA 747
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: Determined on the papers Counsel for the Applicant: Dr. C Ward SC with Ms. M Bridgett Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondents: Ms. S Fendekian Solicitor for the Respondents: Clyde & Co ORDERS
NSD 214 of 2019 BETWEEN: LEXIA WILSON
Applicant
AND: TONY BRITTEN-JONES (and others named in the Schedule)
First Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
4 FEBRUARY 2021
THE COURT ORDERS THAT:
1.In respect to the application for leave to commence the proceedings, the applicant is to pay the respondents’ costs forthwith, to be agreed or assessed.
2.In respect to the application for an injunction, the applicant is to pay the costs order made by Nicholas J on 3 June 2019 forthwith.
3.In respect to the notice to produce, the application for costs is deferred pending the resolution of the applicant’s remaining claims.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
The issue raised in this application is the appropriate costs orders to be made in respect of certain interlocutory applications that have been determined by this Court within the context of the applicant's sex discrimination case, namely the refusal of the application for leave to commence the proceedings: Wilson v Britten-Jones (No 2) [2020] FCA 1290 (Wilson v Britten-Jones (No 2)); the respondents' interlocutory application to set aside a notice to produce, which I determined on 23 April 2020, with reasons provided in Wilson v Britten-Jones (No 2) [41]-[76]; and the application for an interlocutory injunction refused by…
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- Case
- [2021] FCA 63
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the applicant was entitled to an order as to costs, and if so, whether it was appropriate to make such an order at that stage. The court had to consider the applicant's conduct regarding the notice to produce, and whether there was good reason to depart from the ordinary principles of costs in this case. The court also had to evaluate the respondents' argument that the notice to produce was futile, and whether this could be properly considered after the remaining claims had been heard.
The court concluded that while the applicant's conduct in respect to the notice was not exemplary, it was not appropriate to make an order for costs for the respondents at that stage. The court found that the respondents' argument regarding the futility of the notice to produce could only be properly considered after the remaining claims had been heard. Therefore, the appropriate order at that stage was for costs of the notice application to be deferred pending the determination of the applicant's other claims. The court also ordered that the applicant pay the respondents' costs for the leave and injunction applications forthwith.
The court ultimately made orders that the applicant was to pay the respondents' costs for the leave and injunction applications forthwith. In relation to the notice to produce, the application for costs was deferred pending the resolution of the applicant's remaining claims. The parties were to be heard further following the determination of those claims in relation to the issue of costs for the notice to produce.
Orders
Orders of the court
1. In respect to the application for leave to commence the proceedings, the applicant is to pay the respondents’ costs forthwith, to be agreed or assessed.
2. In respect to the application for an injunction, the applicant is to pay the costs order made by Nicholas J on 3 June 2019 forthwith.
3. In respect to the notice to produce, the application for costs is deferred pending the resolution of the applicant’s remaining claims.
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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