Wilson v Britten-Jones (No 3) [2021] FCA 63

Wilson v Britten-Jones (No 3) [2021] FCA 63

The costs of the application for leave and the injunction, both discrete from the applicant's remaining claims and unlikely to be offset against future costs orders, should be paid by the applicant forthwith in accordance with ordinary principles and the circumstances; as regards the notice to produce, costs are deferred pending determination of the remaining claims due to the unresolved relevance of the produced documents and the mixed success on the application.

Parties
Applicant: Lexia Wilson; First Respondent: Tony Britten-Jones; Second Respondent: Shannon Adams; Third Respondent: Florian Ammer; Fourth Respondent: Michael Bacina; Fifth Respondent: Andrea Beatty; Sixth Respondent: Donna Benge; Seventh Respondent: Megan Calder; Eighth Respondent: Tim Capelin; Ninth Respondent: Tim Clark; Tenth Respondent: Tim Coleman; Eleventh Respondent: James Dickson; Twelfth Respondent: Peter Dwyer; Thirteenth Respondent: Geoff Emmett; Fourteenth Respondent: David Ey; Fifteenth Respondent: Anne Freeman; Sixteenth Respondent: Mark Gordon; Seventeenth Respondent: Sebastian Greene; Eighteenth Respondent: Gordon Grieve; Nineteenth Respondent: Tom Griffith; Twentieth Respondent: Chris Hartigan; Twenty First Respondent: Sina Kassra; Twenty Second Respondent: Tim Lange; Twenty Third Respondent: Michael Lhuede; Twenty Fourth Respondent: Martin Lovell; Twenty Fifth Respondent: Simon Morris; Twenty Sixth Respondent: Ian Nathaniel; Twenty Seventh Respondent: Tim O'Callaghan; Twenty Eighth Respondent: Andrew Rankin; Twenty Ninth Respondent: Robert Riddell; Thirtieth Respondent: Andrew Robertson; Thirty First Respondent: Thomas Russell; Thirty Second Respondent: Greg Taylor; Thirty Third Respondent: Simon Venus; Thirty Fourth Respondent: Simon Ward; Thirty Fifth Respondent: Ashley Watson; Thirty Sixth Respondent: Greg Whyte; Thirty Seventh Respondent: Ted Williams; Thirty Eighth Respondent: Mark Williamson; Thirty Ninth Respondent: Bruce Cameron; Fortieth Respondent: Michael Coker; Forty First Respondent: James Macdonald; Forty Second Respondent: Alasdair McLean; Forty Third Respondent: Hugh Scales; Forty Fourth Respondent: MJC Legal Pty Ltd ACN 127 069 229 as Trustee of the MJC Legal Trust; Forty Fifth Respondent: JAM Legal Pty Ltd ACN 127 357 046 as the Trustee of the JAM Legal Trust; Forty Sixth Respondent: ARM Legal Pty Ltd ACN 600 054 037 as Trustee of the ARM Legal Trust; Forty Seventh Respondent: HS Legal Pty Ltd ACN 127 356 852 as the Trustee of the HS Legal Trust
Jurisdiction
Australia
Judgment Date
04 February 2021
Procedural Posture
Application for Costs in Civil Proceeding / Post Interlocutory; Determination of Costs Orders After Refusal of Leave and Injunction Applications, Some Claims Proceeding
Outcome
Orders as to costs made: applicant to pay respondent's costs forthwith in respect of the application for leave to commence proceedings and injunction applications; costs in respect of notice to produce deferred until conclusion of the applicant's other claims.
Legal Topics
Interlocutory Costs, Costs Payable Forthwith, Notice to Produce, Leave to Commence Proceedings, Injunctions
Civil Procedure Costs Interlocutory Costs Costs Payable Forthwith Notice to Produce Leave to Commence Proceedings Injunctions

Case Brief

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Parties

Lexia Wilson

Applicant

Tony Britten-Jones

First Respondent

Shannon Adams

Second Respondent

Florian Ammer

Third Respondent

Michael Bacina

Fourth Respondent

Andrea Beatty

Fifth Respondent

Donna Benge

Sixth Respondent

Megan Calder

Seventh Respondent

Tim Capelin

Eighth Respondent

Tim Clark

Ninth Respondent

Tim Coleman

Tenth Respondent

James Dickson

Eleventh Respondent

Peter Dwyer

Twelfth Respondent

Geoff Emmett

Thirteenth Respondent

David Ey

Fourteenth Respondent

Anne Freeman

Fifteenth Respondent

Mark Gordon

Sixteenth Respondent

Sebastian Greene

Seventeenth Respondent

Gordon Grieve

Eighteenth Respondent

Tom Griffith

Nineteenth Respondent

Chris Hartigan

Twentieth Respondent

Sina Kassra

Twenty First Respondent

Tim Lange

Twenty Second Respondent

Michael Lhuede

Twenty Third Respondent

Martin Lovell

Twenty Fourth Respondent

Simon Morris

Twenty Fifth Respondent

Ian Nathaniel

Twenty Sixth Respondent

Tim O'Callaghan

Twenty Seventh Respondent

Andrew Rankin

Twenty Eighth Respondent

Robert Riddell

Twenty Ninth Respondent

Andrew Robertson

Thirtieth Respondent

Thomas Russell

Thirty First Respondent

Greg Taylor

Thirty Second Respondent

Simon Venus

Thirty Third Respondent

Simon Ward

Thirty Fourth Respondent

Ashley Watson

Thirty Fifth Respondent

Greg Whyte

Thirty Sixth Respondent

Ted Williams

Thirty Seventh Respondent

Mark Williamson

Thirty Eighth Respondent

Bruce Cameron

Thirty Ninth Respondent

Michael Coker

Fortieth Respondent

James Macdonald

Forty First Respondent

Alasdair McLean

Forty Second Respondent

Hugh Scales

Forty Third Respondent

MJC Legal Pty Ltd ACN 127 069 229 as Trustee of the MJC Legal Trust

Forty Fourth Respondent

JAM Legal Pty Ltd ACN 127 357 046 as the Trustee of the JAM Legal Trust

Forty Fifth Respondent

ARM Legal Pty Ltd ACN 600 054 037 as Trustee of the ARM Legal Trust

Forty Sixth Respondent

HS Legal Pty Ltd ACN 127 356 852 as the Trustee of the HS Legal Trust

Forty Seventh Respondent

Procedural Posture

Application for Costs in Civil Proceeding / Post Interlocutory; Determination of Costs Orders After Refusal of Leave and Injunction Applications, Some Claims Proceeding

Legal Issues

  1. 1 Whether costs for interlocutory applications (leave, injunction, notice to produce) should be paid forthwith or deferred
  2. 2 Whether good reason exists to depart from the ordinary principles as to when costs are payable
  3. 3 Which party is entitled to costs of notice to produce application

Ratio Decidendi

The costs of the application for leave and the injunction, both discrete from the applicant's remaining claims and unlikely to be offset against future costs orders, should be paid by the applicant forthwith in accordance with ordinary principles and the circumstances; as regards the notice to produce, costs are deferred pending determination of the remaining claims due to the unresolved relevance of the produced documents and the mixed success on the application.

Court Disposition

Orders as to costs made: applicant to pay respondent's costs forthwith in respect of the application for leave to commence proceedings and injunction applications; costs in respect of notice to produce deferred until conclusion of the applicant's other claims.

Orders

  • Applicant to pay respondents' costs forthwith in respect to the application for leave to commence proceedings, to be agreed or assessed.
  • Applicant to pay the costs order made by Nicholas J on 3 June 2019 forthwith (relating to injunction application).