Gale v Australian Financial Complaints Authority (No 2) [2023] FCA 1125

Gale v Australian Financial Complaints Authority (No 2) [2023] FCA 1125

It was not appropriate to order indemnity costs, or any costs, against the Authority or the Trustee because both respondents adopted a responsible position by filing submitting notices save as to costs, the Authority's approach was consistent with Hardiman, that approach provided public benefit and benefit to the applicant, and the mere fact that errors were found in the Authority's and Trustee's approach did not justify a costs order. The applicant's asserted offer of compromise did not require a different outcome because the argument was not developed and the Authority disputed that its determination involved rejection of such an offer.

Jurisdiction
Australia
Judgment Date
21 September 2023
Procedural Posture
Costs Application Following Appeal From a Decision of the Australian Financial Complaints Authority / Determined on the Papers After the Appeal Had Been Allowed and the Matter Remitted
Outcome
The applicant's application for indemnity costs was dismissed and each party was ordered to bear its own costs.
Legal Topics
['indemnity Costs' 'submitting Notices' 'hardiman Principle' 'appeal From Australian Financial Complaints Authority Determination' 'superannuation Trustee Decision']
['administrative Law' 'costs' 'superannuation'] ['indemnity Costs' 'submitting Notices' 'hardiman Principle' 'appeal From Australian Financial Complaints Authority Determination' 'superannuation Trustee Decision']

Case Brief

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Procedural Posture

Costs Application Following Appeal From a Decision of the Australian Financial Complaints Authority / Determined on the Papers After the Appeal Had Been Allowed and the Matter Remitted

Legal Issues

  1. 1 ['Whether the successful applicant should receive indemnity costs against the Australian Financial Complaints Authority and NM Superannuation Pty Ltd.' "Whether the respondents' filing of submitting notices save as to costs, and the Hardiman principle, supported no order as to costs." "Whether errors found in the Authority's determination or the Trustee's conduct justified a costs order notwithstanding the respondents' submitting notices." "Whether the applicant's offer of compromise justified indemnity costs."]

Ratio Decidendi

It was not appropriate to order indemnity costs, or any costs, against the Authority or the Trustee because both respondents adopted a responsible position by filing submitting notices save as to costs, the Authority's approach was consistent with Hardiman, that approach provided public benefit and benefit to the applicant, and the mere fact that errors were found in the Authority's and Trustee's approach did not justify a costs order. The applicant's asserted offer of compromise did not require a different outcome because the argument was not developed and the Authority disputed that its determination involved rejection of such an offer.

Court Disposition

The applicant's application for indemnity costs was dismissed and each party was ordered to bear its own costs.

Orders

  • ["The applicant's application that the respondents pay his costs of the proceeding on an indemnity basis be dismissed." 'The parties bear their own costs of the proceeding.']