SunshineLoans Pty Ltd v Australian Securities and Investments Commission

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

YATES J: 1 On 27 June 2023, I refused the applicant's application for leave to appeal: SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2023] FCA 707. At the time I noted that I had been asked to reserve the question of costs. I was prepared to do so. However, I made an order that the parties inform the Court, through my Associate, whether there was any reason why the costs of and incidental to the application for leave to appeal should not follow the event. 2 On 29 June 2023, the respondent, the Australian Securities and Investments Commission, informed the Court that, in its submission, costs should follow the event. 3 On 3 July 2023, the applicant, SunshineLoans Pty Ltd, filed written submissions contending that the proper exercise of discretion was to order that the costs of the application for leave to appeal be treated as the respondent's costs in the principal proceeding, QUD 190 of 2022. 4 The applicant submitted that its application for leave to appeal was "not an isolated event" but one which went to the core of the respondent's standing to bring the principal proceeding. It submitted that if it is ultimately determined that the Court does not have jurisdiction in the principal proceeding (as the applicant contends), it would be anomalous to require it to pay the costs of seeking to have that question determined in a timely manner. 5 Further, an award of costs that "followed the event" would be unfair because it would impose costs on the applicant for seeking to raise a jurisdictional issue on which it might succeed. 6 Conversely, treating the respondent's costs as its costs in the principal proceeding would secure its entitlement to costs if it is ultimately found, contrary to the applicant's contention, that the Court does have jurisdiction to entertain the principal proceeding. 7 I do not accept the applicant's submissions. 8 First, the applicant's submissions proceed on the basis that it was simply seeking to have the question of standing determined in a timely manner. That submission overlooks my finding that, contrary to the course proposed by the applicant, the most timely and efficient course, which would achieve appropriate expedition in hearing the applicant's challenge to jurisdiction, was for the question of jurisdiction to be determined by the primary judge, as the primary judge had decided. 9 Secondly, it would not be unfair to award costs on the basis of the "event" (the dismissal of the application for leave to appeal). The application for leave to appeal did not raise the jurisdictional issue to which the applicant refers. That issue had already been raised before the primary judge, who stated that he would deal with that issue in the course of the upcoming trial. The application for leave to appeal challenged the correctness of the primary judge's decision to deal with the applicant's challenge to jurisdiction at the trial, rather than referring that challenge to a Full Court to be dealt with as a separate question in advance of the trial. 10 In my view, the application for leave to appeal was an isolated event. There is no reason why the applicant's unsuccessful application in relation to how the question of jurisdiction should be dealt with should be tied to the outcome of the jurisdictional question itself. 11 The applicant should pay the respondent's costs of and incidental to the application for leave to appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.