Background
Origin Net Pty Ltd and Origin Energy Limited are parties to Federal Court proceedings. On 2 April 2026, Burley J dismissed Origin Net’s application to review a Registrar’s discovery decision and ordered Origin Net to pay Origin Energy’s costs of that application forthwith.
Origin Net later sought access to documents over which Origin Energy claimed legal professional privilege. Although the application was referred to the duty judge, Origin Net did not press it on the hearing day. Origin Net accepted liability for Origin Energy’s costs of that application, but contended that the costs of both applications should proceed to taxation rather than be determined as lump sums.
The Court’s Holding
Burley J held that the costs of both interlocutory applications should be assessed on a lump-sum basis. The Court ordered Origin Net to pay the respondents’ costs of the unpressed 8 May 2026 privilege application as a lump sum and otherwise dismissed that application.
Under r 40.02(b) of the Federal Court Rules 2011 (Cth), the Court also directed that the costs awarded in relation to the earlier discovery review application be paid as a lump sum. The existing order that those costs be paid forthwith remained in place.
Key Takeaways
- Costs of both interlocutory applications will be assessed as lump sums, rather than through taxation.
- Origin Net must pay Origin Energy’s costs of the privilege application, which it no longer pressed.
- If the parties do not agree on the amounts within 30 days, a Registrar will determine the quantum, potentially on the papers.
Why It Matters
The decision illustrates the Federal Court’s use of lump-sum costs assessment for discrete interlocutory disputes. It also confirms that a party abandoning an interlocutory application may remain liable for the other side’s costs, with the amount to be resolved efficiently by agreement or Registrar assessment.