Birdseye v Australian Securities and Investments Commission [2003] FCAFC 265

FEDERAL COURT OF AUSTRALIA

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 265 COSTS – appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – applicant applied to vary costs order to exclude costs of respondent's notice of alternative contention – whether ordinary rule that costs follow the event should be departed from Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 referred to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 cited NICHOLAS BIRDSEYE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION S 399 of 2003 BRANSON, MARSHALL and STONE JJ 25 NOVEMBER 2003 SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 399 of 2003

BETWEEN: NICHOLAS BIRDSEYE

APPLICANT

AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

RESPONDENT

JUDGES: BRANSON, MARSHALL and STONE JJ

DATE OF ORDER: 25 NOVEMBER 2003

WHERE MADE: SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT the motion to vary order 2 of the orders made on this matter on 21 October 2003 be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 399 of 2003

BETWEEN: NICHOLAS BIRDSEYE

APPLICANT

AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

RESPONDENT

JUDGES: BRANSON, MARSHALL and STONE JJ

DATE: 25 NOVEMBER 2003

PLACE: SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

the court 1 On 21 October 2003 the Court published judgment in this matter (Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232). The orders then made were: '1. The application be dismissed. 2. The applicant pay the respondent's costs.'

Pursuant to leave granted on that day, the applicant has moved to vary order 2 above by the addition of the following words 'such costs not to include any costs of the Notice of Alternative Contention'. The respondent opposes the variation sought.