Frugtniet v Australian Securities and Investments Commission

1. The applicant pay the respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 On 22 August 2016, the Court ordered that the Amended Notice of Appeal of the applicant (Mr Frugtniet) be dismissed. In the reasons for judgment also published on that day (Frugtniet v Australian Securities and Investments Commission [2016] FCA 995), orders were made providing Mr Frugtniet with an opportunity to file and serve any submission as to the costs of the proceeding, failing which an order would take effect requiring Mr Frugtniet to pay the respondent's costs. 2 Mr Frugtniet did file a submission as to the question of costs. Mr Frugtniet accepted that the respondent (ASIC), having succeeded in the proceeding, was entitled to an order for its costs. 3 As costs ordinarily follow the event and as there is no contest that Mr Frugtniet should pay the costs of ASIC, I will make an order to that effect. 4 I note that in the submission made by Mr Frugtniet, Mr Frugtniet included a request directed to ASIC that it seek an order pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (the Act). A submission was then made as to why the Court should exercise its discretion in favour of the grant of a costs certificate if the requested application was made by ASIC. 5 By its submission, ASIC contended, quite rightly in my view, that Mr Frugtniet's contentions misunderstood the occasion and the circumstances in which a costs certificate could be granted. I mention that in passing but I need not be detained by that issue further. There is no application before me for a costs certificate to be issued pursuant to s 6 of the Act. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.