FEDERAL COURT OF AUSTRALIA
Budini v Sunnyfield (No 2) [2020] FCA 988
File number: SAD 266 of 2018 Judge: CHARLESWORTH J Date of judgment: 15 July 2020 Catchwords: PRACTICE AND PROCEDURE – application for disqualification on grounds of apprehended bias – whether an apprehension of bias arises on a costs application in circumstances where criticisms of a party have previously been expressed in reasons for judgment dismissing a substantive application – whether criticisms of party unnecessary, unwarranted or made without warning – whether criticised conduct relevant to the outcome of the costs application – application for disqualification dismissed
PRACTICE AND PROCEDURE – where litigation representative of first applicant also named as second applicant in his own name and right – whether upon dismissal of an application the first and second applicants should be made jointly and severally liable for the respondents’ costs – first applicant suffering from a mental incapacity – purpose of litigation representative – no basis for imposing liability for costs upon the first applicant – observations of the rights of indemnity of a litigation representative against the property of the disabled person
COSTS – where application for leave to commence an application under the Australian Human Rights Commission Act 1986 (Cth) dismissed for reasons including that the claim had no reasonable prospects of success – where serious allegations made without proper evidentiary foundation – order for indemnity costs warranted
Legislation: Australian Consumer Law s 237
Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO
Civil Dispute Resolution Act 2011 (Cth) s 7
Disability Discrimination Act 1992 (Cth)
Federal Court of Australia Act 1976 (Cth) s 43
Judiciary Act 1903 (Cth) s 79
Federal Court Rules 2011 (Cth) rr 9.61, 40.01, 40.02, 40.03, 40.13, Div 40.2
Trustee Act 1925 (NSW)
Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Budini v Sunnyfield [2019] FCA 2164
BUG15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 860
Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197
Challenger Life Company Limited v Estate of the Late Robert John Real (No 2) [2017] FCA 1059
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ex parte Davis [1901] NSWStRp 71; (1901) 1 SR (NSW) 187
Isbester v Knox City Council (2015) 255 CLR 135
Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission and Another (2002) 76 ALD 424
Karadaghian v Big Beat [2014] NSWSC 1691
King v Yurisich (No 2) [2007] FCAFC 51
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451
Mengiste v Endowment Fund for the Rehabilitation of Tigray and Ors [2013] 5 Costs LR 841
O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559
Oshlack v Richmond River Council (1998) 193 CLR 72
Pritchard v Roberts (1873) LR 17 Eq 222
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- AGLC
- Budini v Sunnyfield (No 2) [2020] FCA 988
- Case
- [2020] FCA 988
- Decision Date
CaseChat Overview and Summary
The Court examined whether the previous criticisms gave rise to an apprehension of bias. It held that the criticisms did not indicate bias as they were necessary, warranted, and did not unfairly prejudice Budini's case. The Court also considered the issue of costs liability where Budini acted in dual capacities. It decided that Budini, in his personal capacity, should bear his own costs but not as a litigation representative. The Court noted that Budini's wife, suffering from a mental incapacity, should not be held liable for costs, and observations were made on the rights of indemnity of a litigation representative against the property of the disabled person.
The Court dismissed the application for disqualification and ordered Budini to pay certain costs on an indemnity basis. It also deferred the respondents' application to prevent Budini from accessing a trust to cover these costs to the trial judge and reserved the costs of this application. The orders reflect the careful balancing of the parties' rights and the principles of fairness and equity in litigation.
Orders
Orders of the court
1. Mr Michael Budini’s application for an order in terms of paragraph 3 of the interlocutory application filed on 26 March 2020 is dismissed.
2. Subject to the order in paragraph 4, Mr Michael Budini, in his capacity as the first applicant’s former litigation representative, is to pay that part of the respondents’ costs of the application for leave made in paragraph 2 of the interlocutory application filed on 22 October 2018 as is attributable to Ms Budini’s claims.
3. Subject to the order in paragraph 4, Mr Michael Budini, in his personal capacity as the second applicant is to pay that part of the respondents’ costs of the application for leave made in paragraph 2 of the interlocutory application filed on 22 October 2018 as is attributable to his personal claims.
4. The respondents are to bear their own costs of the subject matter referred to in Budini v Sunnyfield [2019] FCA 2164 at [125] – [132].
5. The costs specified in paragraphs 2 and 3 of these orders are payable on an indemnity basis.
6. Subject to paragraph 7, upon the taxation of the respondents’ costs, the attributions referred to in paragraphs 2 and 3 of these orders are to be taken to be equal.
7. The parties have liberty to apply to vary the attribution specified in paragraph 6 of these orders, such application to be made:
(a) to the Registrar responsible for assessing the quantum of costs;
(b) by a date to be fixed by the Registrar.
8. The respondents’ application for an order preventing Mr Michael Budini from having direct or indirect recourse to the Trust referred to in Budini v Sunnyfield [2019] FCA 2164 at [10] – [14] in respect of the cost liability in paragraph 2 of these orders (the Trust Application) is deferred to the trial judge.
9. The costs of the Trust Application to date are reserved to the trial judge.
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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