Australian Securities & Investments Commission v Hawley

REASONS FOR JUDGMENT 1 This matter was heard by me on 3 September 2008 and I gave judgment on 16 September 2008. In those proceedings ASIC had sought orders, inter alia, restraining Mr Hawley from leaving Australia until 5 December 2008. Those proceedings were contested and there was substantive argument between the parties. In the events which occurred, there was partial victory for both sides but, on balance, it seems to me that the real winner was Mr Hawley rather than ASIC. That seems to me to be an appropriate discretionary matter to take into account in deciding whether there should be a costs order and, if there should be, against whom it should be made. 2 There was tendered before me correspondence passing between the parties in July. The gravamen of that correspondence was that Mr Hawley had offered to consent to a regime which was, in a sense, less favourable than the result he achieved. It is true that the writing of such letters can, in an appropriate circumstance, generate an entitlement, in a discretionary sense, to an indemnity costs order. However, the real question concerns the reasonableness of the positions of the parties. 3 Although Mr Hawley on balance succeeded, in the course of that success, I made a number of negative remarks about his proffered reasons for wanting to go overseas. When one takes into account the nature of his explanation, it can be seen that it was quite appropriate that ASIC was sceptical of it. In that circumstance I do not think that the situation is such that there should be an indemnity costs order. I do, however, think that ASIC should have to pay two thirds of the costs of Mr Hawley of the proceedings before me. 4 Mr Kunç also applied for the costs of the proceedings generally. Normally, in a case like this, there would be no such costs order, particularly where there was a consent regime. Mr Kunç's argument was that although Mr Hawley had given an undertaking, had complied with that undertaking and had notified ASIC that he was going to travel, nevertheless ASIC had acted in pre-emptory fashion by commencing these proceedings without further notice to him. It seems to me that the regime involving the undertaking contemplated that if Mr Hawley notified ASIC of an intention to travel, it was likely that ASIC would apply. That was the purpose of the regime. In that circumstance, it would be inappropriate to make any order with respect to the costs of the proceedings generally. 5 There is a housekeeping matter which is what order should be made in relation to the application. What I propose to do is to dismiss the application, which will give to it finality. The orders I make are that, in relation to the proceedings before me, ASIC pay two thirds of the costs of Mr Hawley, that there be no order as to costs otherwise, and that on and from 5 December 2008 the proceedings be otherwise dismissed. 6 I grant liberty to the parties to apply on three days' notice. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.