Federal Court of Australia
Auerbach v Seven Network (Operations) Ltd (Costs) [2026] FCA 987
File number: | NSD 413 of 2025 |
Judgment of: | WHEELAHAN J |
Date of judgment: | 23 June 2026 |
Catchwords: | PRACTICE AND PROCEDURE — no point of principle – application by the respondent for indemnity costs in respect of the applicant’s interlocutory application for summary judgment and other relief – where the applicant’s application was brought without reasonable cause and contained serious allegations which lacked foundation – indemnity costs ordered |
Cases cited: | Auerbach v Seven Network (Operations) Ltd [2026] FCA 799 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 |
Division: | General Division |
Registry: | New South Wales |
National Practice Area: | Other Federal Jurisdiction |
Number of paragraphs: | 4 |
Date of hearing: | 23 June 2026 |
Counsel for the Applicant: | The applicant appeared in person |
Counsel for the Respondent: | M Richardson SC with M Cowden |
Solicitor for the Respondent: | Addisons |
REASONS FOR JUDGMENT
Ex tempore, revised
NSD 413 of 2025 | ||
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BETWEEN: | TAYLOR AUERBACH Applicant | |
AND: | SEVEN NETWORK (OPERATIONS) LIMITED Respondent | |
WHEELAHAN J:
Introduction
1 Upon giving judgment in the applicant’s interlocutory application filed on 13 May 2026, senior counsel for the respondent, Seven, sought an order that the applicant pay the costs of the interlocutory application on an indemnity basis. Counsel cited the decision of the Full Court in Melbourne City Investments v Treasury Wine Estates (No 2) [2017] FCAFC 116 at [5] (Jagot, Yates and Murphy JJ), in support of his application.
2 Orders for indemnity costs are usually made only in exceptional or special circumstances. However, appellate authority provides guidance as to the circumstances in which it might be appropriate to make an order for indemnity costs. Those circumstances include where a party is put to expense as a result of proceedings or an application brought without reasonable cause; where allegations have been made that should never have been made; where the case is truly hopeless; where, properly advised, a party should not have brought an application; and where the evidence is incapable of sustaining the claims for relief that are made.
3 In response, Mr Auerbach stated, or emphasised, that he was unrepresented. But, as has been observed elsewhere, being unrepresented is not a privilege; it is a misfortune: Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 481. That, of itself, is not a reason why I would not entertain making an order for indemnity costs on this application.
4 For the reasons I have given in dismissing the application, there was no proper basis for the orders sought by the applicant: see Auerbach v Seven Network (Operations) Ltd [2026] FCA 799. The various serious allegations that the applicant made lacked any proper foundation. Having regard to the seriousness of the allegations, I regard it as reasonable for the respondent to have engaged senior and junior counsel to appear to defend the application. For these reasons, I am persuaded to order that the applicant pay the respondent's costs of the application, to be taxed on an indemnity basis.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. |
Associate:
Dated: 27 July 2026
