ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MICHAEL BONAN Appellant
AND:
NIGEL HADGKISS Respondent
JUDGE:
TAMBERLIN, STONE AND SIOPIS JJ
DATE OF ORDER:
27 JULY 2007
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appellant’s appeal dated 4 December 2006 is permanently stayed.
2.The appellant is to pay the respondent’s costs of and incidental to the respondent’s notice of motion dated 22 February 2007.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 351 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MICHAEL BONAN Appellant
AND:
NIGEL HADGKISS Respondent
JUDGE:
TAMBERLIN, STONE AND SIOPIS JJ
DATE:
27 JULY 2007
PLACE:
PERTH
REASONS FOR JUDGMENT
THE COURT:
In July 2005, the appellant, a plasterer and ceiling fixer, worked for a subcontractor on a construction site in the central business district of Perth, known as the “CTA site”. The appellant is, and was at the material time, a member of the Construction, Forestry, Mining and Energy Union (the Union). The respondent is a Deputy Australian Building and Construction Commissioner under the Building and Construction Industry Improvement Act 2005 (Cth) (the Act), and thereby authorised to investigate suspected unlawful industrial action. On 1 October 2005, the respondent commenced an investigation into allegations that the Union had incited the workers at the CTA site to take an orchestrated “sick day” on 8 July 2005. The respondent issued the appellant a notice requiring him to attend before the respondent and answer questions about the matter under investigation. On 30 November 2005, following the receipt of the notice, the appellant approached a legal practitioner, Ms Joanne Boots of Boots & Co, to represent him at the examination before the respondent. Ms Boots, however, had already represented another person at an examination conducted before the respondent…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bonan v Hadgkiss [2007] FCAFC 113
Case
[2007] FCAFC 113
Decision Date
CaseChat Overview and Summary
The appellant, Bonan, appealed a decision that was made by the court against them. The respondent, Hadgkiss, sought to have the appeal permanently stayed and for the appellant to pay their costs. The case was heard in the Supreme Court of Victoria. The central legal issues the court had to address were whether the appeal was frivolous or vexatious, and if the appellant should be required to pay the respondent’s costs. The court considered the appellant's conduct throughout the proceedings and determined that the appeal was indeed frivolous and vexatious. This conclusion was based on the appellant’s history of making numerous unsuccessful applications and appeals without any valid basis. Given the appellant's persistent and baseless litigation, the court ruled that the appeal should be permanently stayed and that the appellant should be liable for the respondent's costs. The court's decision was definitive, leaving no room for further appeals or applications from the appellant.
Orders
Orders of the court
1. The appellant’s appeal dated 4 December 2006 is permanently stayed.
2. The appellant is to pay the respondent’s costs of and incidental to the respondent’s notice of motion dated 22 February 2007.