Breckler, Daniel Nathan v Leshem, Shirley

[1998] FCA 211

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 60 of  1997

On Appeal from the Superannuation Complaints Tribunal constituted by Christine Heazlewood, Tony Tuohey and Robert Drake

BETWEEN:	DANIEL NATHAN BRECKLER, DOUGLAS IAN FREEDMAN, DAVID RHINE AND MARCUS IVAN ROSENWAX, TRUSTEES OF THE CECIL BROS PTY LTD SUPERANNUATION PLAN APPELLANTS
AND:	SHIRLEY LESHEM RESPONDENT
JUDGES:		LOCKHART, HEEREY AND SUNDBERG JJ
DATE OF ORDER:		11 MARCH 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The respondents notice of motion filed 20 February 1998 is dismissed with costs.

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	WAG 60 of  1997

On Appeal from the Superannuation Complaints Tribunal constituted by Christine Heazlewood, Tony Tuohey and Robert Drake

BETWEEN:	DANIEL NATHAN BRECKLER, DOUGLAS IAN FREEDMAN, DAVID RHINE AND MARCUS IVAN ROSENWAX, TRUSTEES OF THE CECIL BROS PTY LTD SUPERANNUATION PLAN APPELLANTS
AND:	SHIRLEY LESHEM RESPONDENT
JUDGES:		LOCKHART, HEEREY AND SUNDBERG JJ
DATE OF ORDER:		11 MARCH 1998
WHERE MADE:		MELBOURNE

REASONS FOR JUDGMENT

By an undated notice of motion filed on 20 February 1998 the respondent seeks an order setting aside the costs order made against her when the Court delivered judgment on the special case on 12 February 1998.

If the respondent’s solicitors had arranged for the Court to be told at the commencement of the hearing that she wished to be heard on the question of costs, the extra cost and inconvenience caused by the notice of motion could have been avoided.

However having reconsidered the matter we are satisfied the costs order was appropriate.

Faced with an adverse order of the Tribunal, the appellants exercised their statutory right of appeal to the Federal Court.  Among other grounds, they sought to attack the constitutional validity of the Tribunal.  The respondent sought to have the Federal Court uphold the Tribunal’s decision in her favour by rejecting the appellants’ case.  This necessarily meant that the appellants would have to incur costs in persuading the Federal Court to accept one or more of the grounds relied on.

It was foreseeable that in the ordinary course of this litigation the constitutional point would be referred to a Full Court by way of question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth). The respondent did not oppose such a reference, which was plainly a sensible one.

Therefore it is not to the point that the respondent (understandably) sought to limit her own costs by relying on the Attorney-General to oppose the appellants’ constitutional argument before the Full Court.  The appellants were still required to incur costs in advancing their constitutional argument, which a majority of the Full Court upheld.  These costs were incurred by the appellants as a necessary and foreseeable incident of successfully attacking the Tribunal’s  order, which the respondent chose to defend. 

The notice of motion will be dismissed with costs. 

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of their Honours Lockhart, Heerey and Sundberg JJ.

Associate:

Dated:             11 March 1998

Counsel for the Appellants:	D H Solomon
Solicitors for the Appellants:	Solomon Brothers
Solicitors for the Respondent:	Freehill Hollingdale & Page
Counsel for the Attorney‑General of the Commonwealth, intervening:	H Burmester and G Kennett
Solicitor for the Attorney‑General:	Australian Government Solicitor
Date of Hearing:	11 March 1998