Background
Taylor Auerbach brought an interlocutory application against Seven Network (Operations) Ltd seeking summary judgment and other relief. Wheelahan J dismissed that application in Auerbach v Seven Network (Operations) Ltd [2026] FCA 799.
After judgment was given on the interlocutory application, Seven sought its costs on an indemnity basis. Auerbach, who appeared without legal representation, emphasised that status in opposing the costs application.
The Court’s Holding
Wheelahan J ordered Auerbach to pay Seven’s costs of the interlocutory application, taxed on an indemnity basis. The Court held that the application had no proper basis and that the serious allegations advanced by Auerbach lacked any proper foundation.
The Court noted that indemnity costs are ordinarily reserved for exceptional or special circumstances, including applications brought without reasonable cause, baseless serious allegations, hopeless cases, and claims unsupported by evidence. Auerbach’s self-represented status did not itself preclude such an order. Given the allegations’ seriousness, it was reasonable for Seven to retain both senior and junior counsel.
Key Takeaways
- An unsuccessful interlocutory application may attract indemnity costs where it is brought without reasonable cause.
- Serious allegations without a proper foundation can justify a departure from the usual costs basis.
- Self-representation does not, by itself, shield a party from an indemnity-costs order.
Why It Matters
The decision illustrates the Federal Court’s willingness to award indemnity costs where an interlocutory application lacks a proper evidentiary or legal foundation, particularly when it advances serious unsupported allegations. It also confirms that parties may reasonably incur substantial representation costs in responding to such claims.