Easterday v Australian Securities Commission & Anor

BC 9603343

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(Judgment by: Nicholson R D)

Clark Ervin Easterday v
Australian Securities Commission, First Respondent
Australian Stock Exchange Ltd (ACN 008 624 691), Second Respondent

Court:

Judge:
Nicholson R D

Subject References:
Costs
appeal from Administrative Appeals Tribunal
freedom of information
whether costs should follow the event
whether existence of mareva injunction in relation to assets of unsuccessful applicant a bar to costs orders
whether costs should be allowed for separate representation
whether costs orders should be for fixed sums

Case References:
ACF v Forestry Commission and Ors - (1988) 81 ALR 166
Gladstone Park Shopping Centre Pty Ltd v Wills - (1984) 6 FCR 496
cf Golskiv v Kirk - (1987) 14 FCR 143
Hughes v WA Cricket Association (Inc) - (1986) ATPR 48,134
Norilya Minerals Pty Ltd v Ireland (Intervener Commonwealth Bank of Australia) - (1994) 12 WAR 485
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581
Statham v Sheppard (No 2) - 1974 FLR 244

Hearing date: 16 May 1996
Judgment date: 26 July 1996

Perth

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Judgment by:
Nicholson R D

On 25 June 1996 this Court issued its reasons for concluding the appeal by the applicant from the decision of the Administrative Appeals Tribunal should be dismissed. Written submissions have been received in relation to the issue of costs.

It is trite law that costs ordinarily follow the event unless special circumstances justify the making of some other order: Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496 at 505; Hughes v WA Cricket Association (Inc) (1986) ATPR 48,134 at 48,236.

The only special circumstance upon which the applicant relies is the fact that on 15 August 1990 a mareva injunction was granted over all his assets and was extended on 17 August 1990. As he expresses it, the effect of that injunction was to freeze all his assets except the entitlement to spend a maximum of $1,000 per week for personal use.

The mareva injunction operates only in personam and gives the claimant no proprietary rights in the assets concerned and provides no advantage over other creditors. Any other creditor effected by the injunction can apply to have the injunction varied and is usually entitled to have its costs for doing so reimbursed on an indemnity basis by the party who obtained the injunction: Norilya Minerals Pty Ltd v Ireland (Intervener Commonwealth Bank of Australia) (1994) 12 WAR 485 at 487.

In an affidavit in support the applicant states he does not receive income from his employment but, if he were able to do so, it would become an asset and be subject to the injunction. He states he receives the necessities of life from others but does not reconcile that with the provision within the injunction of a maximum allowance per week. In other affidavits the applicant has sworn he is in employment.

The applicant also asserts he is indigent as a result of the application of the injunction. This does not accord with his evidence that he is employed and his evidence that he is entitled to a weekly allowance from his assets.

In the result the mareva injunction is relevant only to whether the respondents will be able to recover their costs and not to whether a costs order should be made.

Absent any specific consideration why the general rule should not be varied there are considerations why the general rule should be applied. This was not a case where the appeal was brought by the applicant in an error of law beset with difficulty: contrast for example Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594. The applicant has sought an indulgence and has done so on wholly inadequate grounds: cf Golskiv v Kirk (1987) 14 FCR 143 at 157.

In my opinion it is appropriate the general rule applies and each of the respondents be awarded costs. Separate representation was reasonable by reason of the separate spheres of interests of the respondents: Statham v Sheppard (No 2) (1974) 23 FLR 244 and ACF v Forestry Commission and Ors (1988) 81 ALR 166 at 169.

Accordingly an order will be made that the applicant pay the costs of the first and second respondents.

For the first respondent it is submitted the order should be that its costs be paid fixed in the sum of $1,500 given the relatively small amount sought to be recovered. For the second respondent it is said that it will act responsibly in relation to any enforcement of a cost order against the applicant.

In my opinion the second respondent should be invited to make a submission concerning having its costs fixed in a sum. The applicant should be given the opportunity to respond to the application by the first respondent for costs in a fixed sum and any request to the same effect emanating on behalf of the second respondent. Five days will be allowed for the submissions from the second respondent and a further five days for the applicant to respond.