Wilson v Britten-Jones (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 04 February 2021
• Neutral Citation: [2021] FCA 63
• Date: 04 February 2021

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 v Australia 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 Wilson v Britten-Jones (No 2) [2020] FCA 1290 Wotton v State of Queensland (No 6) [2017] FCA 245
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:

1. 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 Nicholas J on 25 May 2019: Wilson v Britten-Jones [2019] FCA 747. In respect to that last matter, an order for costs was previously made in favour of the respondents on 3 June 2019.

2. The application occurs in the context that on 7 September 2020, the Court delivered judgment refusing the applicant leave to make an application pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1984 (Cth): Wilson v Britten-Jones (No 2). As a consequence, that put an end to the applicant's sex discrimination claims in these proceedings. There are however other claims which now proceed, which include allegations of a breach of fiduciary duty, breaches of the Australian Consumer Law (ACL), and breaches of the Partnership Act 1891 (SA).

3. The respondents submitted that at this time they are entitled to the costs of each of the above applications, noting that Nicholas J has already made an order in respect to the injunction application, and that the interests of justice require that those costs be payable forthwith.

4. The respondents called in aid the observations of Mortimer J who said in Wotton v State of Queensland (No 6) [2017] FCA 245 at [51] (Wotton), that "it is appropriate that a line be drawn under the costs of the proceedings to date, so that all parties know where they stand prior to heading into the second tranche of the proceedings...".

5. The applicant accepts that she should pay costs in relation to the injunction in accordance with the order made and the refusal of the application for leave to commence the proceedings pursuant to s 46PO, to be agreed or taxed. However, the applicant opposed an order in respect to the notice to produce proceedings and submitted that the respondents should pay her costs as she was substantially successful, or alternatively, each party should bear their own costs. The applicant also opposed any order for costs be paid immediately.

6. For the reasons below:

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 ordered by Nicholas J on 3 June 2019 forthwith; and

3. In respect to the notice to produce, the application for costs is deferred until the conclusion of the proceedings.

Legal principles

7. The relevant principles were conveniently summarised by Perram J in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 at [7]-[9] as follows:

7. The principles guiding the exercise of the discretion involved are well established. First, at a high level of generality, Rule 40.13 confers a discretion which ‘should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice…’ (Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd [1992] FCA 291; (1992) 36 FCR 297 at 312).

8. Secondly, in the exercise of the discretion, the Court should bear in mind the twin policy considerations underpinning Rule 40.13. These are that the Court should avoid exposing the parties to the perils of multiple taxation proceedings (Vasyli v AOL International Pty Ltd [1996] FCA 804) and should keep in mind that subsequent events in the litigation may generate costs orders going in the opposite direction and in respect of which set-offs may ultimately be available (Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at 145 [37]). A corollary of that latter consideration – particularly relevant to this case – is that prior costs orders may be available to set off the interlocutory costs order sought to be taxed. On the other hand, where no credit risks attend the parties to the litigation, this set-off consideration may be somewhat less significant (Courtney v Medtel Pty Limited (No 3) [2004] FCA 347 at [24]).

9. Thirdly, a range of factors may justify departure from the ordinary rule: where the final determination of the proceedings is far away: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 13) [1995] FCA 1459 at [5] (‘It would be wrong if the successful parties do not enjoy the fruits of their order for costs for such a long time.’); where a...