FEDERAL COURT OF AUSTRALIA
Bellamy’s Australia Limited v Basil [2019] FCAFC 147
Appeal from: McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215 File numbers: VID 208 of 2019
VID 211 of 2019Judges: MURPHY, GLEESON AND LEE JJ Date of judgment: 23 August 2019 Catchwords: REPRESENTATIVE PROCEEDINGS – application for leave to appeal in relation to “costs capping” order – leave to appeal refused – neither Décor limb made out Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M(3), 33V
Federal Court Rules 2011 (Cth) Pt 40, rr 40.06, 40.30
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund)v BHP Group Ltd [2019] FCAFC 107
In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318
LFDB v SM (No 2) [2017] FCAFC 207
Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
Nationwide News Pty Limited v Rush [2018] FCAFC 70
Northern Territory v Sangare [2019] HCA 25
Perera v GetSwift Ltd [2018] FCAFC 202; (2018) 263 FCR 92
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36
Date of hearing: 23 August 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant Mr M C Garner with Mr G Kozminsky Solicitor for the Applicant Minter Ellison Counsel for the Respondents Ms R M Doyle SC with Mr D P Lorbeer Solicitor for the Respondent in VID 208 of 2019 Maurice Blackburn Solicitor for the Respondent in VID 211 of 2019 Slater and Gordon
Table of Corrections 28 August 2019 Orders amended ORDERS
VID 208 of 2019 BETWEEN: BELLAMY’S AUSTRALIA LIMITED (ACN 124 272 108)
Applicant
AND: PETER ANTHONY BASIL
Respondent
JUDGES:
MURPHY, GLEESON AND LEE JJ
DATE OF ORDER:
23 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The Applicant file and serve submissions on the question of indemnity costs within seven days of publication of reasons for judgment.
3.The Respondent file and serve any short submissions in reply within three days thereafter.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 211 of 2019 BETWEEN: BELLAMY’S AUSTRALIA LIMITED (ACN 124 272 108)
Applicant
AND: MCKAY SUPER SOLUTIONS PTY LIMITED (ACN 110 853 024) (AS TRUSTEE FOR THE MCKAY SUPER SOLUTIONS FUND)
Respondent
JUDGES:
MURPHY, GLEESON AND LEE JJ
DATE OF ORDER:
23 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The Applicant file and serve submissions on the question of indemnity costs within seven days of publication of reasons for judgment.
3.The Respondent file and serve…
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- Case
- [2019] FCAFC 147
- Decision Date
CaseChat Overview and Summary
The central legal issues the court needed to address were whether the appeal fell within the 'Décor' limb of the test for leave to appeal, which permits an appeal on questions of law of general public importance or where the decision was plainly wrong. The court found that neither limb was satisfied. The decision to cap the costs was not plainly wrong and did not raise a question of law of general public importance.
In reaching its decision, the court carefully examined the statutory framework governing costs in representative proceedings and concluded that the trial judge had appropriately interpreted the legislation. The court held that the trial judge's decision was neither plainly wrong nor did it involve a significant legal issue that warranted an appeal. Consequently, the application for leave to appeal was dismissed. The court ordered that the Applicant file and serve submissions on the question of indemnity costs within seven days, and the Respondent was to file and serve any short submissions in reply within three days thereafter.
Orders
Orders of the court
1. The application for leave to appeal be dismissed.
2. The Applicant file and serve submissions on the question of indemnity costs within seven days of publication of reasons for judgment.
3. The Respondent file and serve any short submissions in reply within three days thereafter.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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