whether defendants who filed a submitting notice in substantive proceeding should have an order for costs made in their favour
where it was reasonable for the submitting defendants to incur legal costs before deciding to file the submitting notice
where it is appropriate to order that those costs be paid in a lump sum
Quick Take
1Filing a submitting notice save as to costs is relevant to the broad costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth), but it does not create a prima facie position that no costs will be awarded from the date of the notice; the question is determined on an appraisal of all the facts (Federal Commissioner of Taxation v Warner (No 2) [2015] FCA 1281; Dyer v Chrysanthou (No 3) [2021] FCA 642).
2Defendants with a genuine interest in the outcome are entitled to obtain legal advice before deciding to file a submitting notice; on the facts, where those pre-notice costs were reasonable, later costs were modest and confined to keeping abreast of the proceeding, and the defendants' conduct did not materially increase the plaintiffs' costs, the unsuccessful plaintiffs were ordered to pay them.
3A lump sum costs order may be made where it is practicable and the quantification is supported by affidavit evidence applying a substantial discount to fees actually incurred (here 40% and 50%), particularly where the paying party advances no alternative figure.
