Birdseye v Australian Securities and Investments Commission [2003] FCAFC 265 (25 November 2003)

Last Updated: 25 November 2003

FEDERAL COURT OF AUSTRALIA

Birdseye v Australian Securities and Investments Commission

[2003] FCAFC 265

COSTS - appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - applicant applied to vary costs order to exclude costs of respondent's notice of alternative contention - whether ordinary rule that costs follow the event should be departed from

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 referred to

Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 cited

NICHOLAS BIRDSEYE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

S 399 of 2003

BRANSON, MARSHALL and STONE JJ

25 NOVEMBER 2003

SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 399 of 2003

BETWEEN:	NICHOLAS BIRDSEYE APPLICANT
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT
JUDGES:	BRANSON, MARSHALL and STONE JJ
DATE OF ORDER:	25 NOVEMBER 2003
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT the motion to vary order 2 of the orders made on this matter on 21 October 2003 be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 399 of 2003

BETWEEN:	NICHOLAS BIRDSEYE APPLICANT
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT

JUDGES:	BRANSON, MARSHALL and STONE JJ
DATE:	25 NOVEMBER 2003
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

THE COURT

1 On 21 October 2003 the Court published judgment in this matter (Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232). The orders then made were:

`1. The application be dismissed.

2. The applicant pay the respondent's costs.'

Pursuant to leave granted on that day, the applicant has moved to vary order 2 above by the addition of the following words `such costs not to include any costs of the Notice of Alternative Contention'. The respondent opposes the variation sought.

2 It is not necessary here to set out the history of this matter or details of the contentions advanced by the parties. They can be read in the Court's earlier judgment. In short, the applicant's appeal from a decision of the Administrative Appeals Tribunal (`the Tribunal') failed. The Notice of Alternative Contention filed by the respondent raised the issue of whether the Tribunal had power, as it had concluded that it did, to review the decision of the respondent the subject of the application before it. The Court found it unnecessary to determine that issue.

3 The filing of a notice in compliance with O 52 r 22(3) of the Federal Court Rules was the likely outcome of the filing of the applicant's notice of appeal. It has not been suggested that it was unreasonable for the respondent to file the notice. The merits of the contention set out in the notice have not been determined. The applicant's appeal, on the other hand, was wholly unsuccessful. Any endeavour by a taxing officer to separate the costs of the notice from the other costs of the application is likely to be fraught with difficulty and itself to be productive of additional costs.

4 In our view no reason has been shown why the ordinary rule that costs should follow the event should be departed from (see Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [11]). Indeed, as is mentioned above, any such departure would be likely to be productive of additional costs.

5 The motion to vary order 2 of the orders made on this matter on 21 October 2003 is dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 25 November 2003

Submissions for the Applicant:	Mr G Feary
Solicitor for the Applicant:	Iles Selley Lawyers
Submissions for the Respondent:	Ms C Francas
Solicitor for the Respondent:	Australian Securities & Investments Commission
Date of Filing Last Written Submissions:	6 November 2003
Date of Judgment:	25 November 2003