Ashby v Slipper [2014] FCA 973

Ashby v Slipper [2014] FCA 973

The indemnity costs order made on 17 August 2012 should be vacated because, following Mr Ashby's discontinuance of the proceeding, it would be unfair for him to retain the benefit of that order. Rule 39.04 of the Federal Court Rules 2011 provides the power to vacate such an order before it is entered and the intervening circumstances of discontinuance justify its exercise.

Parties
Applicant: James Hunter Ashby; Respondent: Peter Slipper
Jurisdiction
Australia
Judgment Date
11 September 2014
Procedural Posture
Application / Post Discontinuance, Interlocutory Applications Regarding Costs
Outcome
The indemnity costs order made on 17 August 2012 is vacated. The Interlocutory Application filed on 10 September 2014 is dismissed. There is no order as to costs in relation to the relevant interlocutory applications.
Legal Topics
Vacating Orders, Indemnity Costs, Discontinuance, Reopening Hearings, Judicial Discretion, Interlocutory Applications
Practice and Procedure Vacating Orders Indemnity Costs Discontinuance Reopening Hearings Judicial Discretion Interlocutory Applications

Case Brief

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Parties

James Hunter Ashby

Applicant

Peter Slipper

Respondent

Procedural Posture

Application / Post Discontinuance, Interlocutory Applications Regarding Costs

Legal Issues

  1. 1 Whether the indemnity costs order made on 17 August 2012 should be vacated following discontinuance
  2. 2 Whether leave to re-open the hearing should be granted
  3. 3 Whether it is fair for a discontinuing party to retain the benefit of a prior interlocutory costs order

Ratio Decidendi

The indemnity costs order made on 17 August 2012 should be vacated because, following Mr Ashby's discontinuance of the proceeding, it would be unfair for him to retain the benefit of that order. Rule 39.04 of the Federal Court Rules 2011 provides the power to vacate such an order before it is entered and the intervening circumstances of discontinuance justify its exercise.

Court Disposition

The indemnity costs order made on 17 August 2012 is vacated. The Interlocutory Application filed on 10 September 2014 is dismissed. There is no order as to costs in relation to the relevant interlocutory applications.

Orders

  • The indemnity costs order made on 17 August 2012 is vacated.
  • There is no order as to costs in relation to the Interlocutory Application filed on 23 June 2014.