The Court of Appeal ordered Eugenie Houston to pay Wendy Doyle 75% of her costs of the appeals, with the amount to be adjudicated if the parties cannot agree. It also awarded Tully Rinckey the costs of attending a directions hearing on 13 March 2020, including briefing counsel, subject to adjudication if there is no agreement.
The ruling, delivered on 18 November 2020, addressed costs following the court’s 22 October 2020 judgment. In that earlier judgment, the court dismissed Houston’s appeals against the refusal to recuse the judge and the dismissal of her proceedings. It also dismissed her appeal against the striking out of her joinder application and affirmed the High Court costs orders. The court allowed her appeal against an Isaac Wunder order and set that order aside.
The court said Houston was substantially unsuccessful and Doyle was, in principle, entitled to costs. It acknowledged Houston’s success in overturning the Isaac Wunder order, but said that Doyle had not sought that order: the judge had made it on her own motion. Doyle nevertheless opposed the entirety of Houston’s appeal. The court considered the Isaac Wunder issue a limited countervailing factor and concluded that a separate costs award to Houston would add complexity and could substantially cancel out Doyle’s costs award.
The court identified dismissal of the proceedings as the principal event for assessing costs and directed that Doyle recover 75% of her appeal costs. It declined to make a wider costs award for Tully Rinckey, which had not participated in the appeal hearing following the court’s directions, limiting its recovery to the 13 March 2020 directions hearing.
The court also stayed its orders, including the costs orders, for 21 days from perfection, except for the order setting aside the Isaac Wunder order. If Houston applied for leave to appeal to the Supreme Court within that period, the stay would continue while the application was determined; if leave were granted, it would continue until the appeal was finally determined unless the Supreme Court ordered otherwise.
The court rejected Houston’s assertions that she lacked sufficient time to address the appeal hearing and that Doyle had admitted misleading the High Court. It said Doyle’s counsel had accepted only that, with hindsight, the High Court might have been told that an order of Allen J had been stayed by the Court of Appeal. The court added that the Allen J order had been affirmed on appeal.