Capricornia Credit Union Ltd v Australian Securities and Investments Commission [2007] FCAFC 112

FEDERAL COURT OF AUSTRALIA

Capricornia Credit Union Ltd v Australian Securities and Investments Commission [2007] FCAFC 112

COSTS – costs on appeal – first hearing day argued on the basis of amended notice of appeal – appeal failed on amended notice of appeal – second hearing day argued on the basis of further amended notice of appeal – applicant succeeded on one ground of the further amended notice of appeal – application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – apportionment of responsibility between the parties – involvement of original decision-maker in the adversarial process – application of the principles in Hardiman

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 14 Administrative Appeals Tribunal Act 1975 (Cth) s 43

The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13applied CAPRICORNIA CREDIT UNION LTD v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND MACKAY PERMANENT BUILDING SOCIETY LTD QUD 580 OF 2005

DOWSETT, EDMONDS AND BESANKO JJ

27 JULY 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 580 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT MULLER

BETWEEN: CAPRICORNIA CREDIT UNION LTD

Applicant

AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

First Respondent

MACKAY PERMANENT BUILDING SOCIETY LTD

Second Respondent

JUDGES: DOWSETT, EDMONDS AND BESANKO JJ DATE OF ORDER: 27 JULY 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The applicant have leave to amend its notice of appeal in accordance with Annexure C to the affidavit of Stephen Edward Quartermain filed on 8 May 2007; 2. The appeal be allowed in part; 3. The decision of the Administrative Appeals Tribunal dated 4 March 2005 to approve the purpose identified in the Schedule to this order pursuant to s 173(3)(bb) of the Corporations Act 2001 (Cth) be set aside and in lieu thereof there be a decision that the said purpose be not approved; 4. The appeal otherwise be dismissed; 5. The applicant pay the first respondent's costs of the appeal, limited to the costs which it would have incurred had it, on 14 August 2006 made a submitting appearance; 6. The applicant pay the second respondent's costs of and incidental to the appeal, up to and including 25 March 2007; and 7. The parties be at liberty to apply for a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). Such application must be made within seven days of the publication of these reasons.