Porter v Australian Prudential Regulations Authority [2009] FCA 1148

Porter v Australian Prudential Regulations Authority [2009] FCA 1148

APRA's notice required production within two days of issue and was served only six hours and ten minutes before the time for compliance, with no evidence justifying those timeframes. The issue of the notice was objectively unreasonable and its service was reprehensible. Because APRA was the substantive aggressor and the applicants were compelled to bring defensive proceedings to protect themselves from the notice and potential criminal consequences, APRA's pre-litigation conduct could be considered for indemnity costs. That conduct was sufficiently unreasonable to constitute a special or unusual feature justifying indemnity costs for both the substantive proceedings and the urgent motion,...

Jurisdiction
Australia
Judgment Date
09 October 2009
Procedural Posture
Federal Court Proceeding Concerning Costs After Administrative Law Relief Relating to an APRA Notice / Judgment on Application for Indemnity Costs After APRA Consented to Orders Setting the Notice Aside
Outcome
The applicants were awarded indemnity costs against the First Respondent, and the Registrar was directed to provide the reasons to APRA's chairperson.
Legal Topics
['indemnity Costs' 'pre Litigation Conduct' 'administrative Notice to Produce' 'security for Costs Analogy' 'ex Parte Communications With Chambers']
['administrative Law' 'civil Procedure' 'costs'] ['indemnity Costs' 'pre Litigation Conduct' 'administrative Notice to Produce' 'security for Costs Analogy' 'ex Parte Communications With Chambers']

Case Brief

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Procedural Posture

Federal Court Proceeding Concerning Costs After Administrative Law Relief Relating to an APRA Notice / Judgment on Application for Indemnity Costs After APRA Consented to Orders Setting the Notice Aside

Legal Issues

  1. 1 ['Whether APRA should pay the costs of the proceedings on an indemnity basis.' 'Whether APRA should pay the costs of the urgent Notice of Motion of 5 August 2009 on an indemnity basis.' "Whether APRA's issue and service of the notice before the commencement of proceedings could justify indemnity costs where the applicants were forced to commence defensive proceedings."]

Ratio Decidendi

APRA's notice required production within two days of issue and was served only six hours and ten minutes before the time for compliance, with no evidence justifying those timeframes. The issue of the notice was objectively unreasonable and its service was reprehensible. Because APRA was the substantive aggressor and the applicants were compelled to bring defensive proceedings to protect themselves from the notice and potential criminal consequences, APRA's pre-litigation conduct could be considered for indemnity costs. That conduct was sufficiently unreasonable to constitute a special or unusual feature justifying indemnity costs for both the substantive proceedings and the urgent motion,...

Court Disposition

The applicants were awarded indemnity costs against the First Respondent, and the Registrar was directed to provide the reasons to APRA's chairperson.

Orders

  • ['The First Respondent is to pay the costs of these proceedings on an indemnity basis.' 'The First Respondent is to pay the costs of the Notice of Motion of 5 August 2009 in proceedings NSD 592/2009 on an indemnity basis.' 'Direct the Registrar to provide a copy of these reasons to the chairperson of the Australian...