McEwan v Office of the Australian Information Commissioner (No 2) [2022] FCA 1452

Federal Court of Australia

McEwan v Office of the Australian Information Commissioner (No 2) [2022] FCA 1452 File number: QUD 181 of 2022

Judgment of: LOGAN J

Date of judgment: 31 October 2022

Catchwords: PRACTICE AND PROCEDURE – application to discontinue proceedings – whether leave is required to discontinue under r 21.12 of the Federal Court Rules 2011 (Cth) – whether interlocutory application should be deemed to take effect as a notice of discontinuance in Form 48 – where applicant had filed statement of claim – where no defence filed – where pleadings had not closed – held: interlocutory application deemed to take effect as a notice of discontinuance COSTS – costs of discontinued proceedings – where r 26.12(7) of the Federal Court Rules 2011 (Cth) provides prima facie presumption that discontinuing party bears the costs of discontinuance – whether discontinuing party had discharged onus in showing that the usual position as to costs should not prevail – where applicant brought concurrent proceedings with substantial overlap of matters in dispute – where the decision to discontinue reflected a personal choice of the discontinuing party to no longer proceed with one proceeding and not the other – application to displace the operation of r 26.12(7) dismissed

Legislation: Privacy Act 1988 (Cth) s 41 Taxation Administration Act 1953 (Cth) s 355-50 Federal Court Rules 2011 (Cth) r 26.12

Cases cited: Edwards v Santos Ltd (2011) 242 CLR 421 Francis v Allen & Unwin (No 2) [2015] FCA 229) McKenzie v State of South Australia [2006] FCA 891