FEDERAL COURT OF AUSTRALIA Muldoon v Australian Securities and Investments Commission [2005] FCA 1469 MULDOON & ORS v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION NSD 1545 OF 2005 GRAHAM J 18 OCTOBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1545 OF 2005 BETWEEN: ASHLEY MULDOON FIRST APPLICANT CHRISTOPHER ONG SECOND APPLICANT PETER GALLAGHER THIRD APPLICANT AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 18 OCTOBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Respondent pay the Applicants' costs of the Notice of Motion filed 10 October 2005. 2. The said costs shall be payable forthwith. 3. The Applicants' bill of costs in respect of such costs may be taxed forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1545 OF 2005 BETWEEN: ASHLEY MULDOON FIRST APPLICANT CHRISTOPHER ONG SECOND APPLICANT PETER GALLAGHER THIRD APPLICANT AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT JUDGE: GRAHAM J DATE: 18 OCTOBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 It is unnecessary in this judgment to recite again the nature of the substantive proceedings and the context in which the Applicants' Notice of Motion filed 10 October 2005 came before the Court. These are set out in my reasons for judgment of 11 October 2005 on the motion. 2 In the result, I held that claims of public interest immunity should not prevail over claims that the production of documents was in the interests of the due administration of justice in respect of three of the six documents in question and that such claims should not prevail in respect of most of the remaining three documents. I also held that a claim of legal professional privilege in respect of one document was untenable. 3 I reserved the costs of the motion pending the receipt of written submissions thereon. 4 The Applicants have submitted that the appropriate order in the circumstances would be that the Respondent pay the Applicants' costs of the Motion on an indemnity basis. The Respondent, on the other hand, has submitted that the costs of the Motion should be reserved. 5 It is common ground that costs are within the unfettered jurisdiction of the Court but that jurisdiction must be exercised judicially. 6 Regardless of the ultimate outcome of the proceedings, the Applicants have enjoyed significant success on the Motion in respect of what was a discrete issue which became necessary for decision because of the stance taken by the Respondent. In my opinion the Applicants should have their costs of the Motion. However, I do not consider that this is a case where they should be awarded on an indemnity basis. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 18 October 2005 Counsel for the Applicants: S J Gageler SC and M N Allars Solicitor for the Applicant: Gilbert & Tobin Counsel for the Respondent: P Lacava SC Solicitor for the Respondent: Australian Securities and Investments Commission (Andrew Tregear) Date of Judgment: 18 October 2005