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[2016] HCA 3
mixed. The writ for levy of property issued on 23 December 2015 is set aside. The matter of the claim pursuant to s 77M of the Judiciary Act 1903 (Cth) is remitted to the Federal Court of Australia, New South...
Aristocrat and related companies lost a special leave application in the High Court in 2013 and were ordered to pay the respondents' costs, later taxed at just over $100,000. Mr Allam and Tonita applied ex parte for a writ allowing seizure of Aristocrat's property and later for a garnishee order. They did not tell the Court that the underlying Federal Court case was still running, that a judge had ordered Mr Allam to pay Aristocrat costs likely to exceed $900,000, that letters had been exchanged about set-off, or that Tonita had been deregistered weeks earlier. Once Aristocrat learned of the seizure and placed the sum in a trust account, it filed a summons revealing these facts. Gageler J held that the failure to disclose was fatal to the ex parte writ, which was set aside. The whole dispute about enforcing the High Court costs order, including any set-off and the garnishee application, was sent to the Federal Court so that all related costs questions could be resolved together in the court already dealing with the substantive litigation.
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2,138 words · generated 24/04/2026
2 cited instruments linked from this judgment.
In May 2013 the Full Court of the High Court dismissed an application for special leave to appeal brought by Aristocrat Technologies Australia Pty Ltd and two associated companies, ordering them to pay the costs of the respondents including Mr Riad Allam and Tonita Enterprise Pty Ltd. Those costs were taxed in the High Court and a certificate issued on 2 December 2015 for $100,229.05. On 17 December 2015 Mr Allam and Tonita applied ex parte for a writ for levy of property. The writ issued on 23 December 2015. On 21 January 2016 they applied ex parte for a garnishee order. When that application came to Gageler J's attention, his Honour directed that the parties be invited to address whether the enforcement matter should be remitted under s 44(1) of the Judiciary Act 1903 (Cth).
Aristocrat and its co-applicants then filed a summons on 5 February 2016 seeking to set aside the writ, to stay execution, and to stay the certificate of taxation. The supporting affidavit of Michael John Williams disclosed facts that had not been placed before the Court on the ex parte applications. These included the fact that, after the High Court remittal, the primary judge in the Federal Court had determined the substantive issues on 30 September 2013 and on 25 November 2013 ordered Mr Allam to pay a proportion of the applicants' costs. Appeals and cross-appeals from those orders were heard by the Full Federal Court in March and April 2014 and judgment remained reserved. On 9 December 2015 the solicitors for Aristocrat had written to the respondents' solicitors stating that they were finalising a bill of costs in the Federal Court expected to exceed the taxed High Court costs, that Aristocrat would resist immediate payment, and that a set-off would be required once the Federal Court taxation was completed. The respondents' solicitors replied the same day but there was no further correspondence before the ex parte applications.
The affidavit also revealed that Tonita had been deregistered by ASIC on 6 December 2015. Aristocrat only became aware of the enforcement steps on 21 January 2016 when property was seized. On 2 February 2016 it filed a bill of costs in the Federal Court seeking more than $900,000 from Mr Allam. On 4 February 2016 Aristocrat paid the taxed sum into its solicitors' trust account to be held pending determination of the summons and any set-off. In reply the respondents criticised the form and quantum of the Federal Court bill and offered an explanation for the deregistration but did not dispute the primary facts disclosed by Aristocrat.
Gageler J concluded that the material non-disclosure on the ex parte applications required the writ to be set aside immediately. His Honour then remitted the entire enforcement claim under s 77M of the Judiciary Act to the Federal Court, New South Wales Registry, with directions that the matter proceed there as if the steps taken in the High Court had been taken in that Court, and ordered that copies of all relevant documents be forwarded.
Gageler J began from the statutory framework. A costs order made on a special leave application is a judgment of the High Court and engages the enforcement remedies preserved by s 77M(1) of the Judiciary Act. That entitlement gives rise to a "matter" within the High Court's original jurisdiction under s 76(ii) of the Constitution and, relevantly, within the Federal Court's jurisdiction under s 39B(1A)(c). The power of remitter under s 44(1) is therefore available to any court that has jurisdiction with respect to the subject-matter and the parties.
His Honour held that remitter should ordinarily occur where enforcement of a special leave costs order is contested. The rationale, stated at several points in the reasons, is to prevent the High Court from being distracted from its "ultimate appellate role" by "quintessentially questions of practice and procedure". Remitter neither enlarges nor diminishes the parties' rights and is expected to produce procedural efficiencies. In the present case remitter to the Federal Court was "especially appropriate" because that Court was seised of the underlying litigation and could determine all outstanding costs questions, including equitable set-off, in a single forum. The Federal Court would also be best placed to consider interim measures "in the interests of a just, cheap and quick resolution".
Separately, the ex parte origin of the writ required consideration of the duty of disclosure. Gageler J described it as an "elementary principle" of the adversarial system that an applicant for an ex parte order must make full and fair disclosure of all material facts known to the applicant. The principle is not confined to particular classes of order. Its rationale is the need for public confidence that a court will not affect the rights of an absent party without being fully informed of facts that party could have been expected to place before the court. No reason was advanced why that principle should not apply to an application for a writ for levy of property. The non-disclosure of the Federal Court costs order, the anticipated set-off, the correspondence, and the deregistration was material. Accordingly the writ had to be set aside. All remaining questions, including costs of the summons and the garnishee application, were left for the Federal Court on remitter.
Prior to this decision the duty of full disclosure on ex parte applications was long settled. The judgment treats it as an "elementary principle" whose rationale lies in the integrity of the administration of justice. Likewise, the power to remit matters under s 44(1) of the Judiciary Act had been used in various contexts, and the characterisation of a costs order on a special leave application as a "judgment" attracting s 77M was not novel. The discretionary power of superior courts to order equitable set-off of costs made in different proceedings was also described as "well-established".
The judgment does not change the content of these rules. It applies them to the specific context of enforcement of High Court costs orders arising from unsuccessful special leave applications. After the decision it is clear that, where such enforcement is contested (particularly where set-off with costs orders in related Federal Court proceedings is asserted), remitter to the Federal Court will ordinarily be the expected course. The decision also reinforces that the duty of candour applies with full force to applications for writs of execution and garnishee orders; material non-disclosure of facts relevant to set-off or the solvency or legal personality of a judgment creditor will ordinarily result in the order being discharged without reaching the merits. The procedural directions given—treating steps taken in the High Court as taken in the Federal Court and forwarding the entire file—provide a practical template for future remittals under s 44(1) in like cases.
The judgment contains several carefully worded statements that repay close attention.
First, on disclosure: "It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made." In plain English, if you go to court without the other side present you must put all your cards on the table; hide anything important and the court will usually tear up the order you obtained.
Second, on the rationale: "The rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested." Translation: the rule exists so everyone can trust that judges are not making one-sided decisions on incomplete information.
Third, on remitter: "The power of remitter being so available, it should ordinarily be exercised in a case where enforcement of a costs order made on an application for special leave to appeal is or is likely to be contested, lest the High Court be distracted from performance of its ultimate appellate role by what are quintessentially questions of practice and procedure." Plain English: contested enforcement fights are the sort of day-to-day procedural work that should be sent to the trial court so the High Court can concentrate on appeals.
Fourth, the conclusion on the facts: the non-disclosure "cannot go unremedied" and "no reason has been advanced as to why that principle of candour did not apply … and as to why its vindication should not result in the writ … being immediately set aside." This shows the Court treated the breach as decisive once identified.
The decision is engaged whenever a party obtains an ex parte order for enforcement of a High Court costs order made on a special leave application and material facts are omitted. Typical triggers include failure to disclose the existence of parallel or related proceedings in which a cross-liability for costs exists or is likely to arise, correspondence asserting a right of set-off, the deregistration or insolvency of one of the judgment creditors, or any other fact that could reasonably affect the court's willingness to grant immediate execution. The precedent also applies where enforcement is contested on equitable set-off grounds; in such cases the High Court will ordinarily remit under s 44(1) rather than determine the contest itself. The fact that the underlying litigation remains on foot in the Federal Court, that a bill of costs has been or is about to be filed there, or that a substantial sum is likely to be recoverable on taxation, strengthens the case for remitter so that all accounts can be taken in one place. The decision is not limited to intellectual property or corporate disputes; it is expressed in general terms and applies to any matter in which special leave costs are taxed and enforcement pursued ex parte.
The judgment carefully grounds itself in established principle rather than breaking new ground, repeatedly describing the disclosure obligation as "elementary" and the remitter practice as one that "should ordinarily be exercised". It treats the equitable set-off discretion as "well-established" without needing to cite specific earlier authorities. The reasoning therefore sits comfortably within the existing fabric of practice and procedure authorities. The emphasis on avoiding distraction of the High Court from its appellate functions has reinforced the institutional division of labour between the Court's constitutional role and routine enforcement disputes. The concrete directions for remittal—treating prior steps as taken in the receiving court and forwarding the entire file—have provided a workable mechanism that later courts have been able to adopt without difficulty when similar enforcement issues arise. The decision's focus on the public-interest rationale for the candour rule has served to remind practitioners that the duty is not a technicality but goes to the root of judicial confidence in ex parte processes.
The judgment leaves certain practical questions for the Federal Court on remitter. It does not decide whether the set-off will ultimately be allowed, what quantum (if any) should be set off, or the precise effect of Tonita's deregistration on its entitlement to enforce the costs certificate. These are expressly left for the Federal Court to determine "if and when they arise" and to consider "such interim measures as may appear to it to be warranted". The decision does not explore the outer limits of materiality: for example, whether every piece of correspondence or every procedural step in the Federal Court appeal must be disclosed, or only those that could realistically affect the decision to grant immediate execution. Nor does it address the position if the judgment creditor had made partial disclosure but omitted one arguably less central fact. The interaction between s 77M remedies and any stay that the Federal Court might later grant on the substantive appeals also remains to be worked through in that Court. Finally, while the judgment confirms that the disclosure principle applies to writs for levy of property, it does not catalogue every category of enforcement process to which the principle extends; that question is left to future cases. Practising lawyers should therefore treat the decision as confirming a robust duty of disclosure and a strong presumption of remitter, while recognising that the detailed accounting and any interim relief will be resolved in the court with the closest connection to the underlying dispute.
ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD & ORS APPLICANTS
Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3 17 February 2016 S169/2012
(a) the application for special leave to appeal filed on 22 June 2012;
(b) the order of the High Court of Australia made on 2 May 2013;
(c) the certificate of taxation issued on 2 December 2015 in respect of costs of $100,229.05;
(d) the first and sixth respondents' application for a writ for levy of property filed on 17 December 2015;
(e) the affidavit of Robert Gorczyca sworn on 17 December 2015;
(f) the writ for levy of property issued on 23 December 2015;
(g) the first and sixth respondents' application for a garnishee order filed on 21 January 2016;
(h) the affidavit of Robert Gorczyca sworn on 21 January 2016;
(i) the submissions filed by the parties on 5 February 2016;
(j) the applicants' summons filed on 5 February 2016;
(k) the affidavit of Michael John Williams sworn on 5 February 2016;
(l) the submissions filed by the first and sixth respondents on 10 February 2016;
(m) the affidavit of Robert Gorczyca sworn on 10 February 2016; and
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Practice and procedure - High Court of Australia - Enforcement of judgments - Remittal of matters - Costs - Ex parte application for remedies for enforcement of judgment of High Court under s 77M of Judiciary Act 1903 (Cth) - Costs order in special leave application - Writ for levy of property and garnishee order - Judgment debtor claimed set-off for costs to be taxed in proceedings in Federal Court of Australia - Whether claim for remedies for enforcement of costs order should be remitted to Federal Court.
Practice and procedure - High Court of Australia - Ex parte application - Material non-disclosure on application for writ for levy of property - Whether writ should be set aside.
GAGELER J. On 2 May 2013, the Full Court of the High Court dismissed with costs an application for special leave to appeal from a decision of the Full Court of the Federal Court which had set aside a judgment of a single judge of that Court and remitted to that judge the determination of a number of issues including as to the costs of the proceedings in the Federal Court. The applicants in the application for special leave to appeal were Aristocrat Technologies Australia Pty Ltd ("Aristocrat") and two associated companies. The respondents included Mr Allam and Tonita Enterprise Pty Ltd ("Tonita"). Mr Allam's and Tonita's costs of the special leave application were subsequently taxed in the amount of $100,229.05. The certificate of taxation was issued by a Taxing Officer of the High Court on 2 December 2015. On 17 December 2015, Mr Allam and Tonita applied ex parte to the High Court for a writ for levy of the property of Aristocrat to the amount of the taxed costs together with statutory interest and the costs of execution. A writ in that form was issued by a Deputy Registrar of the High Court on 23 December 2015. On 21 January 2016, Mr Allam and Tonita made a further ex parte application to the High Court for a garnishee order. That further application having been brought to my attention, I directed a Deputy Registrar, on 1 February 2016, to invite submissions from the parties as to why the matter of the enforcement of the costs order made on the application for special leave to appeal should not be remitted to another court under s 44(1) of the Judiciary Act 1903 (Cth). Following the issuing of that invitation, the applicants filed, on 5 February 2016, a summons seeking, amongst other things, to set aside or to stay the execution of the writ for levy of the property of Aristocrat and to stay the certificate of taxation. The affidavit filed in support of that summons reveals a number of significant facts which were not disclosed in the evidence filed on behalf of Mr Allam and Tonita in support of the applications made by them ex parte on 17 December 2015 and 21 January 2016. The previously undisclosed facts include that the primary judge in the Federal Court determined the substantive issues remitted to him on 30 September 2013 and that the primary judge went on to determine on 25 November 2013 that Mr Allam pay a specified proportion of the applicants' costs. The Full Court of the Federal Court on 31 March and 1 April 2014 heard appeals and cross-appeals from the orders of the primary judge embodying those determinations, and its judgment remains reserved. The certificate of taxation in respect of the costs of the application for special leave to appeal having been issued by a Taxing Officer of the High Court on 2 December 2015, the solicitors for Aristocrat indicated in correspondence with the solicitors for Mr Allam and Tonita, on 9 December 2015, that they were in the process of finalising a bill of costs to be filed in the Federal Court in relation to the order for costs which had been made by the primary judge, that the amount of those costs was likely to exceed the amount of the taxed costs of the application for special leave to appeal, and that Aristocrat resisted immediate payment of the costs of the special leave application on the basis that there would need to be a set-off when the taxation of costs in the Federal Court was finalised. Other than a response on the same day from the solicitors for Mr Allam and Tonita, there was no further correspondence between the parties on the topic of costs between then and 17 December 2015. The previously undisclosed facts also include that Tonita was deregistered by the Australian Securities and Investments Commission on 6 December 2015. The affidavit filed in support of the applicants' summons goes on to reveal that the applicants became aware that Mr Allam and Tonita had taken steps to enforce the costs order made on the application for special leave to appeal only on 21 January 2016 when property of Aristocrat was seized in the execution of the writ. On 2 February 2016, Aristocrat filed in the Federal Court a bill of costs which seeks to recover from Mr Allam an amount in excess of $900,000. The bill of costs is likely to be assessed in late March or early April 2016. In the meantime, on 4 February 2016, Aristocrat paid the amount of $100,229.05 into its solicitors' trust account with instructions to undertake to hold those moneys pending the determination of the applicants' summons and its right to set off the costs of the application for special leave to appeal against the costs in the Federal Court. In response to that affidavit, the solicitors for Mr Allam and Tonita filed on 10 February 2016 an affidavit which criticises the form, and disputes the amount, of Aristocrat's bill of costs. That affidavit goes on to offer an explanation for the deregistration of Tonita, but not to dispute the fact of deregistration or to dispute the other previously undisclosed facts revealed by the affidavit in support of the applicants' summons. Mr Allam and Tonita oppose remitter of the matter of the enforcement of the costs order made on the application for special leave to appeal, and dispute the High Court's power to order remitter. The applicants oppose remitter on discretionary grounds. They point to the well-established discretionary power of a superior court to order set-off of costs orders when it is equitable to do so, even if the orders have been made in different proceedings, and argue that the High Court is well-placed itself to consider the exercise of that power in the present case. The applicants argue in the alternative that any remitter should only occur if the High Court first grants at least an interim stay. The High Court undoubtedly has power under s 44(1) of the Judiciary Act to order remitter to another court of the matter of the enforcement of a costs order made on an application for special leave to appeal. The power to grant or refuse special leave to appeal legislatively conferred on the High Court, relevantly by s 33 of the Federal Court of Australia Act 1976 (Cth), is a judicial power. An order for costs made in its exercise takes effect as a "judgment" of the Court. As a judgment of the Court, such an order for costs attracts the operation of s 77M(1) of the Judiciary Act, which provides: "Subject to the Rules of Court, a person in whose favour a judgment of the High Court is given is entitled to the same remedies for the enforcement of the judgment in a State or Territory, by execution or otherwise, against the person, or against the property of the person, against whom the judgment is given, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given." A claim by a party to an application for special leave to appeal in whose favour a costs order has been made to exercise the entitlement conferred by s 77M(1) gives rise to a "matter" in which original jurisdiction may be conferred on the High Court under s 76(ii) of the Constitution. Because that matter is within the jurisdiction of the High Court, it is also within the jurisdiction of a State court under s 39(2) of the Judiciary Act and, because it arises under a law of the Commonwealth, it is also within the jurisdiction of the Federal Court under s 39B(1A)(c) of the Judiciary Act. Each State Supreme Court and the Federal Court is, on that basis, a court which "has jurisdiction with respect to the subject-matter and the parties" so as to be capable of determining the matter remitted to it under s 44(1) of the Judiciary Act "subject to any directions of the High Court". The power of remitter being so available, it should ordinarily be exercised in a case where enforcement of a costs order made on an application for special leave to appeal is or is likely to be contested, lest the High Court be distracted from performance of its ultimate appellate role by what are quintessentially questions of practice and procedure. Such remitter would neither enhance nor diminish nor otherwise alter the rights or obligations of the parties, and could ordinarily be expected to result in procedural efficiencies. In this case, remitter to the Federal Court is especially appropriate to allow all of the issues between the parties as to the costs of their ongoing litigation ultimately to be determined in a single forum. The Federal Court will be best placed to determine issues of set-off if and when they arise and will be best placed to consider and give effect to such interim measures as may appear to it to be warranted in the interests of a just, cheap and quick resolution of the matter. There remains the question of whether it is appropriate to consider making any order on the applicants' summons in advance of remitter. Were it not for the material non-disclosure in the evidence filed on behalf of Mr Allam and Tonita in support of the applications made by them ex parte on 17 December 2015 and 21 January 2016, I would consider it a sound exercise of discretion to defer all issues between the parties or putative parties for consideration of the Federal Court. That non-disclosure having been noticed, however, it cannot go unremedied. It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested. No reason has been advanced as to why that principle of candour did not apply in relation to the ex parte order for which Mr Allam and Tonita applied on 17 December 2015 and as to why its vindication should not result in the writ for levy of the property of Aristocrat issued on 23 December 2015 being immediately set aside. That is the order I propose to make, leaving the Federal Court on remitter to consider what other orders are to be made on the summons filed by the applicants (including as to costs) and on the outstanding application by Mr Allam and Tonita for a garnishee order. Accordingly, I make the following orders and directions:
Aristocrat Technologies Australia Pty Ltd
Allam
The writ for levy of property issued on 23 December 2015 is set aside. The matter of the claim pursuant to s 77M of the Judiciary Act 1903 (Cth) is remitted to the Federal Court of Australia, New South Wales Registry, to be dealt with as if the steps already taken in the High Court had been taken in that Court. The Registrar is to forward specified documents to the Federal Court.