Bartlett v Commonwealth of Australia (No 2) [2019] FCA 800

Bartlett v Commonwealth of Australia (No 2) [2019] FCA 800

The Commonwealth was not entitled to its costs because it did not oppose the common fund application in the usual sense, did not challenge the evidence and did not act as contradictor. However, it was not premature to address the treatment of the applicants' costs, because the funding agreement could otherwise make the withdrawn application costs recoverable from funded group members, or later from group members under a future common fund order. An undertaking by IMF Bentham Limited not to recover from group members any costs of or incidental to the withdrawn common fund application would remove the need for a further order, so the reserved costs issue was adjourned to a case management...

Jurisdiction
Australia
Judgment Date
29 May 2019
Procedural Posture
Representative Proceeding / Costs Following Withdrawal and Dismissal of Interlocutory Application for Common Fund Order
Outcome
The issue of reserved costs of the common fund application was adjourned to a case management hearing to be listed on a date to be fixed by the Registrar.
Legal Topics
['common Fund Order' 'reserved Costs' 'group Members' 'litigation Funding' 'court Appointed Amicus' 'protective and Supervisory Role of the Court']
['civil Procedure' 'class Actions' 'costs'] ['common Fund Order' 'reserved Costs' 'group Members' 'litigation Funding' 'court Appointed Amicus' 'protective and Supervisory Role of the Court']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Representative Proceeding / Costs Following Withdrawal and Dismissal of Interlocutory Application for Common Fund Order

Legal Issues

  1. 1 ['Whether the respondent should receive its costs of and incidental to the withdrawn common fund order application.' "Whether it was premature to determine how the applicants' costs of the withdrawn common fund application should be treated vis-a-vis group members." 'Whether steps should be taken to ensure that costs thrown away by withdrawal of the common fund application are not recovered from group members.']

Ratio Decidendi

The Commonwealth was not entitled to its costs because it did not oppose the common fund application in the usual sense, did not challenge the evidence and did not act as contradictor. However, it was not premature to address the treatment of the applicants' costs, because the funding agreement could otherwise make the withdrawn application costs recoverable from funded group members, or later from group members under a future common fund order. An undertaking by IMF Bentham Limited not to recover from group members any costs of or incidental to the withdrawn common fund application would remove the need for a further order, so the reserved costs issue was adjourned to a case management...

Court Disposition

The issue of reserved costs of the common fund application was adjourned to a case management hearing to be listed on a date to be fixed by the Registrar.

Orders

  • ['The issue of the reserved costs of the common fund application be adjourned to a case management hearing to be listed on a date to be fixed by the Registrar.']