FEDERAL COURT OF AUSTRALIA

Jackson v Heart Research Institute Ltd (No 2) [2025] FCA 1204

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth), the Registrar’s 13 June 2025 orders be quashed and set aside.

2.    Pursuant to r 24.22 of the Federal Court Rules 2011 (Cth), the applicant pay the reasonable loss and damage incurred by The George Institute for Global Health (ACN 085 953 331) (TGI) in complying with a subpoena to produce documents dated 24 July 2024 (and as amended and re-issued on 20 August 2024) in the amount of $26,889.

3.    The applicant pay TGI’s costs of the interlocutory application dated 19 December 2024, in the fixed amount of $9,890.50.

4.    The applicant pay TGI’s costs of the applicant’s interlocutory application dated 2 July 2025, in the fixed amount of $6,889.50.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    The substantive proceedings concerned an application by Professor Shaun Jackson against his former employer The Heart Research Institute claiming that HRI had contravened s 1317AD(1) of the Corporations Act 2001 (Cth) (the whistleblowing provisions) in determining not to renew Professor Jackson’s employment contract on 24 July 2023 and that HRI engaged in misleading and deceptive conduct, contravening s 18 of sch 2 to the Competition and Consumer Act 2010 (Cth). Those proceedings were dismissed on 2 April 2025: Jackson v Heart Research Institute Ltd [2025] FCA 301.

2    The extant application concerns a review of orders made by a Registrar of this Court requiring Professor Jackson to pay the costs of a third-party subpoena issued to The George Institute for Global Health as part of that proceeding.

3    The relevant procedural background can be briefly described in the following way. On 24 July 2024, Professor Jackson served the original subpoena on TGI. TGI, with the assistance of its legal representatives, Norton Rose Fulbright, thereafter contested the breadth of that subpoena. On 16 August 2024, the Registrar granted TGI’s application to set aside the original subpoena, granted Professor Jackson leave to file and serve an amended subpoena in specified terms and made orders that each party bear their own costs of that application. On 21 August 2024, Professor Jackson served the amended subpoena according to the terms of the Registrar’s orders. On 23 August 2024, TGI provided the first tranche of documents comprising 230 documents. Five days later, on 28 August 2024, TGI provided the second tranche of documents, comprising 20 documents. On 3 September 2024, NRF wrote to Professor Jackson’s legal representatives, seeking payment in the sum of $35,368 said to be the amount owing for its client’s compliance with the subpoena request. Professor Jackson refused to pay the amount and his legal representatives stated that if TGI was seeking payment it would need to file an interlocutory application.

4    Sometime later TGI made that application: On 19 December 2024, TGI sought orders pursuant to r 24.22 of the Federal Court Rules 2011 (Cth) that Professor Jackson pay TGI’s reasonable loss and expense incurred in complying with a subpoena to produce documents issued by Professor Jackson on 24 July 2024, which was amended and re-issued on 20 August 2024, fixed in the amount of $39,652.50 or alternatively as determined by the Court. In addition, TGI sought its costs of the application fixed in the amount of $24,501.10 or alternatively as determined by the Court.

5    On 13 June 2025, Registrar Legge made orders that Professor Jackson pay TGI’s costs of complying with the subpoena fixed in the amount of $36,733.50, and TGI’s costs of the interlocutory application fixed in the amount of $19,781.00. Registrar Legge published reasons for the orders on the same date.

6    By interlocutory application dated 2 July 2025, Professor Jackson sought interlocutory orders but did not move on them and also sought, pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth), that the Registrar’s 13 June 2025 orders be quashed and set aside, that TGI bear its own costs for compliance with the subpoena and each party bear their own costs with respect to TGI’s interlocutory application dated 19 December 2024 and this application.

7    In support of this application Professor Jackson relied on the affidavit of Mia Pantechis affirmed on 1 July 2025. TGI relied upon four affidavits: the affidavits of Marna van Zyl sworn on 19 December 2024 and 9 May 2025, and the affidavits of Peter Edmund Cash affirmed on 9 May 2025 and on 5 September 2025.

8    A review under s 35A(6) of the Federal Court Act of an order made by a registrar requires this Court to conduct a re-hearing de novo. The review does not “hinge, or focus, upon error in the decision of the registrar”. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review: Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [17]. The discretion must be exercised by reference to the particular circumstances of the case: Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 at 649.

9    The issues for this Court to determine are whether this Court should exercise its discretion to order Professor Jackson to pay the amount of any reasonable loss or expense incurred by TGI in complying with the subpoena, pursuant to r 24.22 of the Federal Court Rules and, if so, in what amount. This Court must also determine whether to make costs orders with respect to TGI’s application for compliance costs before the Registrar and with respect to this application for review and, if so, in what amount.

Principles governing applications by a non-party under r 24.22

10    This Court has a discretion to order an issuing party pay the amount of any reasonable loss or expense incurred in complying with a subpoena under r 24.22 of the Federal Court Rules. Such a costs order, as the power under s 43 of the Federal Court Act permits, may be made in favour of a non-party. The parties agreed, at a high level, as to the principles governing applications made by non-parties under r 24.22.

11    The recovery of compliance costs by a third party are distinct from an award of costs by a successful party to litigation. As a consequence, taxation should be on a solicitor and client basis: Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284 at 285 regarding the prior rule now embodied in r 24.22(1) cited more recently with approval in Diab Pty Ltd v Yum! Restaurants Australia Pty Ltd (No 2) [2017] FCA 54 at [11].

12    The authorities recognise that the rule ought not be interpreted narrowly: Australian Prudential Regulation Authority v Rural and General Insurance Limited [2004] FCA 933 at [5] per Gyles J, in relation to the predecessor to r 24.22: Harrold v Exactech Australia Pty Ltd [2025] FCA 1058 at [5].

13    This distinction and the need for a broad interpretation of the power, is borne from the fact that the power to issue a subpoena to compel production of documents under pain of contempt of Court is, as observed by Jackman J in Harrold at [5], “an intrusion into the time, affairs and freedom of a third party with no interest in the litigation, in the interests of the administration of justice”. As a consequence, public policy favours third parties being properly compensated for any loss or expense incurred and not be discouraged from compliance by competing demands on energy and time: Harrold at [5].

14    The authorities have recognised that compliance costs cover a range of activities. In Fuelxpress at 285, Lockhart J held that the following activities were included “…legal advice regarding confidentiality and privilege, the cost of that advice is an “expense or loss” incurred in complying with the subpoena and recoverable under Federal Court Rules…”. In Charlick at 649-650, Mansfield J identified the following range of activities:

… the expense incurred in seeking advice as to the validity of the subpoena, including whether to comply with it at all or in part; correspondence or attendances on a party issuing the subpoena, regarding its terms, and including with a view to narrowing or clearly identifying the scope of documents to be produced; advice as to whether documents are confidential or properly subject to claims for privilege; correspondence and attendances and negotiations with the party issuing the subpoena, as to the terms upon which access to the documents should be permitted by the Court, including the negotiation of and formulation of any undertakings as to confidentiality; attendances in Court when the subpoena is called on or when it is stood-over, including attendances to assert and make out any claim that the documents subpoenaed should be protected from unrestricted access due to their confidential character and to seek orders restricting access to the document or documents produced; and steps to ensure that any confidentiality undertakings proposed to be entered into have, in fact, been properly given…

15    In Diab at [14], Bromwich J observed that a non-party should seek reimbursement of its compliance expenses promptly and in a reasonable manner, and in a way that enables the issuing party to assess their reasonableness as to both what was done and what has been charged.

Competing contentions

16    Professor Jackson submitted that first the Court ought not order TGI’s own compliance costs (for the work performed by its officers and employees) because TGI failed to put on proper evidence supportive of its own costs. Secondly, it was submitted that TGI had failed to put on sufficient evidence to justify orders covering TGI’s legal representatives’ purported compliance costs. Thirdly, account ought be taken of the fact that, relying on the dicta in Diab, TGI provided Professor Jackson with no notice of whether costs would be incurred, the basis for them and whether compliance would be oppressive. Further there was a delay in pursuing those costs. Fourthly, in the Court exercising its discretion account ought be taken of the protective restrictive costs regimes applicable under ss 570 of the Fair Work Act 2009 (Cth) and 1317AH(3) of the Corporations Act.

17    As to the second matter (the alleged deficiency in evidence to support NRF’s costs) three main arguments were made: (1) The first of the two NRF bills of costs contained costs which predated the issuance of the amended subpoena (and in part the application to set aside the original notice) and where the entries did not justify that the amounts were properly incurred in compliance with the amended subpoena; (2) As to the second NRF bill of costs, the entries themselves did not disclose reasonable costs incurred in complying with the notice, and disclosed double-handling; (3) There was no clear symmetry between the costs now claimed and those said to have been incurred in the NRF correspondence to Professor Jackson’s solicitors on 3 September 2024.

18    In response, TGI sought to maintain its entitlement to the claimed compliance costs by submitting first, that each set of tasks undertaken by TGI itself and NRF was necessary to comply with the original and then the amended subpoena. In correspondence sent to Professor Jackson’s solicitors on 3 September 2024, TGI described the three sets of tasks undertaken. Secondly, each set of tasks undertaken fell precisely within the ambit of what was expressly contemplated in Charlick as recoverable by a third party complying with a subpoena. Thirdly, having regard to the allocation of resources by TGI to comply with the original and amended subpoenas, the losses and expenses claimed are reasonable. Fourthly, TGI attempted to negotiate an outcome without the need for the parties to resort to court proceedings. Fifthly, the rules do not require that notice be given, nor did Professor Jackson ever seek or say that he would benefit from notice. In any event, the relevant calculations were provided with sufficient particulars on 3 September 2024. Sixthly, as to the issue of purported delay, TGI sought its costs within four months of its 3 September 2024 letter. Seventhly, whilst there are protective constraints on inter partes costs orders under the FW Act and the Corporations Act, the purpose of costs orders as between parties to a proceeding are distinct from those governing recovery by a non-party of reasonable losses and expenses incurred in complying with a court order.

TGI’s compliance costs

19    It may be accepted, as adverted to by the authorities above, that no narrow view of the scope and application of r 24.22 ought be taken where a third party is involved and there are compelling public policy reasons for this. However, a third party may only be entitled to reasonable losses and expenses generated by the kinds of activity identified in Fuelxpress and Charlick where there is evidence supportive of the reasonableness of those costs. This will include evidence which justifies why the involved individuals were necessarily deployed, the nature and extent of the processes undertaken, the necessity for demarcation between tasks and the relevant actors and the scale of the justifiable activity.

20    Here, TGI put on evidence as to the method by which it calculated the TGI Staff Amount, initially $16,095.80 and then later reduced to $13,669.90. However, the evidence of Ms van Zyl (General Counsel) did not provide sufficient detail of the steps taken by each of the employees, why there was a need for each of them to be so involved and why the time spent was reasonable in the circumstances. As is evident from the relevant chronology above, the amended subpoena was issued on 20 August 2024. In the seven days between 21 and 28 August 2024, an unidentified number of searches and document reviews were undertaken, leading to the provision of two tranches of documents: Two days later, on 23 August 2024, 230 documents were provided, and five days later, on 28 August 2024, 20 further documents were provided. It is clear that TGI’s evidence is that the searches and reviews were undertaken in a very short period of time (seven days). TGI claimed the following:

21    It has not been established on the evidence why it was reasonable in the circumstances for each of these persons to have been involved and for the combined time of 16.5 days with respect to four categories of documents (the majority of which were produced two days after the subpoena was issued). There was no filed evidence from the Program Lead, Chief of Staff and Legal Counsel who purportedly undertook the work required to comply with the subpoena. Nor was there any evidence as to how many documents its staff were required to review for the purposes of compliance: They were simply described as a large number. The omission made it difficult to appraise and be satisfied of the reasonableness of the process of searching, the necessity for and as between electronic and hard copy searches, and the corresponding work involved as between each of them and the number of documents involved and how those searches were undertaken. This omission was compounded by the fact that, on the face of the subpoena, it was ultimately confined: It only contained four categories of documents, limited by subject matter and only capturing documents created over a maximum period of six months. The remaining category related to a discrete issue and was limited to documents created before a particular date.

22    For these reasons, it is my view that TGI are entitled to some compliance costs for the work done and where that work was appropriately done by the Legal Counsel and General Counsel. It is my view that the appropriate award in the circumstances, is $7,000.

23    As to the compliance costs arising from the involvement of NRF, it was submitted by Professor Jackson that it would be inappropriate for the Court to award the Legal Amount sought by TGI, for the following reasons:

(a)    The bills relied on by TGI in support of the Legal Amount contain items that cannot reasonably be considered as costs incurred in complying with the subpoena. Without limitation, this includes:

(i)    email and telephone attendances with the solicitor for the Respondent in these proceedings (in circumstances where the Respondent was not the issuing party);

(ii)    several emails between solicitors at NRF and various employees at TGI (without description);

(iii)    reviewing judgments by the docket judge; and

(iv)    costs incurred on dates prior to the orders made by Registrar Legge amending the original subpoena, and ordering that each party bear their own costs with respect to the application to set it aside made by TGI.

(b)    Given the lack of precision identified above, TGI should have particularised the Legal Amount in a bill of costs in the approved form, to enable both Professor Jackson and the Court to assess whether the Legal Amount is reasonable. TGI’s failure to do this militates against the Court exercising its discretion pursuant to r 24.22 of the Federal Court Rules.

(c)    Further, the Legal Amount (being nearly double the TGI Staff Amount) is excessive, having regard to the limited nature of the categories contained in the subpoena. This should also weigh against the Court choosing to exercise its discretion pursuant to r 24.22.

24    The authorities recognise that it is appropriate to award compliance costs for legal advice including regarding confidentiality and privilege, as well as to the validity of the subpoena, correspondence or attendances on the issuing party, advice as to the subpoena’s scope and the documents which will fall within the permissible scope: Fuelxpress at 285; Charlick at 649-650. However, again, in order for the claim to be reasonable it must be supported by cogent evidence.

25    A number of observations may be made about the factual context and the evidence. First, the amended subpoena sought documents in the following four categories limited in content and by time period:

1. All documents referring to or recording any decision by or involving Professor Jackson not to pause patient recruitment after the first four-patient cohort was recruited to conduct safety analysis, during the Safety and Tolerability of AZD6482 in Reperfusion for Stroke (STARS) trial between 20 October 2023 and 20 December 2023.

2. All documents dated between 20 October 2023 and 4 April 2024 recording communications to The Heart Research Institute Ltd (HRI) about alleged breaches by the Applicant of the Australian Code for the Responsible Conduct of Research resulting from the alleged continued enrolment of patients in the STARS trial contrary to the continuous reassessment method.

3. All documents dated or created between 4 April 2024 and 25 June 2024 (both inclusive) recording any steps taken for the purposes of or in the course of conducting the preliminary assessment of the complaints referred to in the letter from TGI and HR1 to the NHMRC dated 25 June 2024.

4. All documents dated prior to 26 June 2024 recording communications about the decision to issue correspondence to the NHMRC on 25 June 2024.

26    Secondly, the original subpoena, though broader in scope, contained two additional categories and otherwise the scope of each of the four categories was directed at similar types of documents to those in amended form. Thirdly, the Registrar had ordered, on 16 August 2024, that each party bear their own costs with respect to the costs of TGI’s application to set aside the original subpoena. Fourthly, it was TGI’s evidence that it only attempted to search for documents falling under the relevant categories after the service of the amended subpoena.

27    Accordingly, by reason of each of these facts, it is difficult to understand how in the circumstances TGI can justify the majority of NRF’s costs prior to 21 August 2024.

28    In NRF’s first bill it seeks $8,094.50, for costs in the period between 30 July 2024 and 7 August 2024. The relevant entries include referring to the “perusing” of the subpoena (namely the original subpoena), reviewing guidelines, an AFR article, the Jackson pleadings and “judgments by Raper J”. They include a “return of subpoena” on 7 August 2024.

29    It is not apparent from the entries nor from the evidence of Mr Cash nor Ms van Zyl how it can be established from these entries that they were in compliance with the amended subpoena (not foreshadowed until 16 August 2024 by the Registrar’s orders and reissued on 20 August 2024). The extent of the evidence was contained in the evidence of Ms van Zyl, in the following terms: “I am informed by Mr Peter Cash, ……and I believe that The George Institute has incurred $25,983.50 (excluding GST) in fees to NRFA in relation to its compliance with the Subpoena (excluding the fees of NRFA in relation to The George Institute’s application in this proceeding dated 6 August 2024)”.

30    Ms van Zyl deposed that the first bill of $8,094.50 (excluding GST) was “for the provision of advice as to the validity of the Subpoena in the form initially issued by the Court, corresponding with” Professor Jackson’s solicitors regarding the scope of the original subpoena and attendance at Court regarding that subpoena. Counsel for TGI submitted that it was permissible for TGI to claim costs prior to the issuance of the amended subpoena and in effect for both subpoenas because the authorities allowed for “costs of compliance” for which there should not be any narrow interpretation and where a relevant expense incurred includes the seeking of advice as to the validity and scope of the subpoena. However, the difficulty with this submission is that there has been an intervening event here. The Court has set aside and granted leave to issue a new subpoena but has ordered that each party pay their own costs for the original application. Necessarily, as part of that initial application to set aside the subpoena, it included costs associated with determining the validity of the initial subpoena. I do not accept, despite the broad view that must be taken for “costs of compliance”, that where the Court has already ordered that each party pay their own costs, there can, in effect, be a reach back to claim what were costs associated with the initial application. Whilst, no doubt, there has been some attempt to excise costs associated with the initial application to set aside the original subpoena, it is clear that the entries must involve some overlap and, in any event, it is not clear from the entries in the first bill how it is that they were “compliance costs” reasonably incurred. For these reasons, I am of the view, that it is appropriate to only award NRF costs, in the sum of $2,000 for the first bill.

31    As to the second bill, Ms van Zyl deposed (based on information from Mr Cash) that the $17,889 (excluding GST) was for:

….the provision of advice regarding the responsiveness of some (only) documents to the Subpoena, as to which documents were properly subject to a claim for legal professional privilege, as to which should be redacted – and to what extent – in accordance with paragraph 3 of the Court’s order made on 16 August 2024, attendances at Court on the return of the subpoena, attending to production of the documents to the Court and the preparation of submissions in support of The George Institute’s privilege claim over various documents in response to a communication from the Court to NRFA on 19 September 2024.

32    I accept that TGI is entitled to the provision of advice regarding its responsiveness to the amended subpoena. There are numerous entries in the bill that relate to the reviewing of documents, correspondence with TGI and with the solicitors for Professor Jackson, as well as regarding privilege. It is my view that from what can be gleaned from the evidence of the surrounding circumstances, together with the content and timing of these entries, that they are reasonably incurred. Therefore, it is my view that Professor Jackson ought to be required to pay to TGI the costs it incurred in the second NRF bill in the fixed amount of $17,889.00.

33    Additional arguments were made by Professor Jackson as to why, I should not, in my discretion, award TGI’s compliance costs, even if certain of the compliance costs were made out on the evidence. I am not persuaded for the following reasons that I should not award the reduced amounts identified above.

34    Professor Jackson claimed that TGI engaged in disentitling conduct, relying on the dicta in Diab and in Zaki Property Pty Ltd v ACE Australian Construction Experts Pty Ltd [2018] NSWSC 976, namely that TGI had not provided Professor Jackson with notice of whether costs would be incurred, the basis for them and whether compliance would be oppressive. Further there was a delay in pursuing those costs. I reject this submission. Whilst I accept that account may be taken of the absence of notice and delay in certain circumstances, I do not accept that the circumstances here warrant the same. In this case, in a very short time period, TGI was required to comply with the subpoena. Whilst I have found that there were aspects of the costs claimed which cannot be justified as being reasonable, I do not accept that TGI failed, in the circumstances, to put Professor Jackson on notice of the costs and caused him prejudice. On 3 September 2024, TGI set out its claim for costs and provided particulars of them (six days after it had provided the second tranche of documents).

35    The circumstances of Diab were different. In that case, there was an assertion of entitlement, without any particulars. The costs applicant did not thereafter provide particulars and did not press for the costs until after the litigation had concluded and the costs between the parties had been finalised. Accordingly, the relevant aspect of the reasoning of Bromwich J (at [14]) relied upon by Professor Jackson must be understood in that factual setting. It may be accepted that a third party should seek their expenses in a reasonable manner and in a way that enables the issuing party to assess the reasonableness both as to what was done and what has been charged as Bromwich J observed. However, the issues of how expedient that course should be depends on the context. In this case, TGI filed its application for costs on 19 December 2024. The matter was heard in September and October 2024 but with a further application in February 2025. Judgment was not delivered until April 2025 allowing the parties to thereafter make submissions on costs. No prejudice was caused to Professor Jackson by reason of him being impeded in recovery of costs by reason of the delay.

36    Further, I do not accept that by reason of any purported failure by TGI to take steps to negotiate an agreement, costs ought not be awarded. Professor Jackson relied upon dicta in Zaki, a decision from the Supreme Court of New South Wales. Relevantly, unlike the Federal Court Rules, r 42.33 of the Uniform Civil Procedure Rules 2005 (NSW) stipulates that unless the court otherwise orders, an order as to costs is not to be made (including third party compliance costs) if the court is not satisfied that the parties concerned have attempted, but failed, to agree on the amount of costs to be paid in relation to the matter for which such an order may be made under the relevant rule. There is no equivalent provision in the Federal Court Rules, however the relevant Practice Note, Subpoenas and Notices to Produce Practice Note (GPN-SUBP), provides, at [9.4]:

The addressee should raise with the issuing party at an early stage in the compliance process any significant costs that are expected to be incurred in complying with the subpoena, including if third-party contractors are proposed to be engaged by the addressee with respect to production of documents.

37    Whilst the letter of 3 September 2024 was expressed as a demand, no steps for enforcement, by making an application for costs, were made until after Professor Jackson’s legal representatives required that an application be made. At no time did Professor Jackson himself attempt thereafter to negotiate an agreed outcome.

38    I turn to the last issue - the capacity for a Court, when exercising its discretion under s 43 of the Federal Court Act, to take into account the protective restrictive costs regimes applicable under ss 570 of the FW Act (as s 43(2) expressly provides) and 1317AH(3) of the Corporations Act.

39    Section 570 provides:

Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

40    Section 1317AH(3) provides:

Costs only if proceedings instituted vexatiously etc.

(1) This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under section 1317AE in which a person (the claimant) is seeking an order under subsection 1317AE(1).

(2) The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.

(3) The claimant may be ordered to pay the costs only if:

(a) the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the claimant's unreasonable act or omission caused the other party to incur the costs.

41    Here, the purpose of inter partes costs orders (to which these sections are directed as is clear from the text of those provisions) is distinct from those governing recovery by a non-party of reasonable losses and expenses incurred in complying with a court order. Professor Jackson did not submit, as he could not, that these sections preclude the making of costs orders of this kind. I accept that, in some circumstances, account might be taken of them. However, I am not persuaded, that in the circumstances of this case, these provisions influence the exercise of the discretion with respect to the compliance costs. However, for the reasons which follow, they do have some bearing on the costs of the applications.

Costs of the applications

42    The remaining issue to be determined is the costs of TGI’s application for costs (before the Registrar) and the costs of this application to set aside those costs orders. Professor Jackson submits that the Court should not, in its discretion, order that Professor Jackson pay TGI’s costs for the applications, given the operation of the protective costs regimes referred to above, that the costs claimed lacked precision, were asserted (rather than making an interlocutory application in the first instance) and were not reasonable.

43    By contrast, TGI submitted that it ought be paid its costs with respect to both applications (where the Court finds that costs are recoverable even if the sum is reduced from that awarded by the Registrar). TGI noted that an alternative pathway would be that the parties bear their own costs but urged the Court, in the circumstances, given there was sufficient foundation for TGI to recover compliance costs, that ought be sufficient as a foundation for TGI to recover its costs of the applications.

44    For the above reasons, I am of the view that TGI is entitled to compliance costs. I am also of the view that TGI was not in the circumstances required to put Professor Jackson on notice of those costs before they were incurred nor was the delay in making the application prejudicial to Professor Jackson such that costs ought not be awarded. It was clear from the correspondence of Professor Jackson’s solicitors, that TGI had no choice but to make the application for its costs and that it was required to defend this application. I accept that Professor Jackson has had some success (in reducing the amount) but he has ultimately been unsuccessful. TGI is a third party to the proceeding, compelled to answer the subpoena. In the circumstances, it is my view that TGI should be awarded half of its costs for each application.

45    As to TGI’s costs of its application before Registrar Legge, TGI sought to justify an award of $24,501.10 by reference to the evidence of Mr Cash affirmed on 9 May 2025. No submissions were made before me save for an assertion as to the amount. As noted by the Registrar, part of Mr Cash’s $24,501.10 estimate, on 9 May 2025, was made as to prospective costs of reviewing Professor Jackson’s written submissions and any reply evidence and thereafter reviewing the Court’s decision. There was no provision for TGI to put on any further evidence in reply, and the application was determined on the papers. Mr Cash did not put on any further evidence updating the Court as to any further actual costs incurred with respect to this application after 9 May 2025 in his later affidavit deposed on 5 September 2025. There is a lack of clarity as to whether the amounts are inclusive or exclusive of GST. It is not clear as to whether TGI is registered for tax purposes and therefore, as was noted by the Registrar, I do not consider it appropriate to include GST. As a consequence, I will award TGI half of the amounts (exclusive of GST) claimed in [13], [15] and [17] of Mr Cash’s 9 May 2025 affidavit, being half of $19,781.

Conclusion

46    For these reasons, the orders made by Registrar Legge will be set aside and the following orders will be made:

(a)    Professor Jackson pay the reasonable loss and damage incurred by TGI fixed in the amount of $26,889.

(b)    Professor Jackson pay TGI’s costs of the interlocutory application dated 19 December 2024, in the fixed amount of $9,890.50.

(c)    Professor Jackson pay TGI’s costs of the applicant’s interlocutory application dated 2 July 2025, in the fixed amount of $6889.50.

Associate:

Dated:    1 October 2025