Comcare v Broadhurst (No 2)

Case [2011] FCAFC 60

FEDERAL COURT OF AUSTRALIA

Comcare v Broadhurst (No 2) [2011] FCAFC 60

Citation: Comcare v Broadhurst (No 2) [2011] FCAFC 60
Appeal from: Broadhurst v Comcare [2010] FCA 1034
Parties: COMCARE v KAREN BROADHURST; KAREN BROADHURST v COMCARE
File number: ACD 36 of 2010
Judges: DOWNES, TRACEY AND FLICK JJ
Date of judgment: 6 May 2011
Catchwords: COSTS – Notice of Motion – liberty to apply – variation of costs order
Legislation: Federal Court Rules O 35 r 7
Cases cited: Comcare v Broadhurst [2011] FCAFC 39, cited
Date of hearing: Heard on the papers
Date of last submissions: 18 April 2011
Place: Sydney (Heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 12
Counsel for the Appellant/Cross-Respondent: Mr D O’Donovan
Solicitor for the Appellant/Cross-Respondent: DibbsBarker
Counsel for the Respondent/Cross-Appellant: Mr R Crowe SC
Solicitor for the Respondent/Cross-Appellant: Capital Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 36 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

COMCARE
Appellant/Cross-Respondent
AND:

KAREN BROADHURST
Respondent/Cross-Appellant

JUDGES:

DOWNES, TRACEY AND FLICK JJ

DATE OF ORDER:

6 MAY 2011

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.Order 4 as made on 18 March 2011 is vacated and in lieu thereof it is ordered that

“4.  There be no order as to costs in respect to the cross-appeal.”

2.The Notice of Motion as filed on 24 March 2011 is otherwise dismissed.

3.The cross-appellant is to pay the costs of the cross-respondent in respect to the said Notice of Motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 36 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

COMCARE
Appellant/Cross-Respondent
AND:

KAREN BROADHURST
Respondent/Cross-Appellant

JUDGES:

DOWNES, TRACEY AND FLICK JJ

DATE:

6 MAY 2011

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

DOWNES J

  1. The cross-respondent, Comcare, seeks a variation of the costs order made in this matter.  The costs order was prepared by the majority judges.  In my reasons for decision I set out the costs orders I proposed and explained why they were appropriate.  Nothing in the further submissions now put to the court causes me to change my opinion as to the appropriate costs order.  The motion should be dismissed with costs.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:        6 May 2011

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 36 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

COMCARE
Appellant/Cross-Respondent
AND:

KAREN BROADHURST
Respondent/Cross-Appellant

JUDGES:

DOWNES, TRACEY AND FLICK JJ

DATE:

6 MAY 2011

PLACE:

SYDNEY (HEARD IN CANBERRA)

TRACEY AND FLICK JJ:

  1. On 18 March 2011 the…

Continue reading Comcare v Broadhurst (No 2)

Sign in free to access the full text

Details
AGLC
Comcare v Broadhurst (No 2) [2011] FCAFC 60
Case
[2011] FCAFC 60
Decision Date

CaseChat Overview and Summary

Comcare v Broadhurst (No 2) involved Comcare as the appellant and Broadhurst as the respondent, with the dispute centering on a variation of a costs order. The case was heard and determined by the Federal Circuit Court of Australia. The central issue before the court was whether the cross-appellant could vary a costs order made in a previous decision, specifically regarding the costs associated with a Notice of Motion filed by the cross-appellant. The court was required to decide if the cross-appellant had the liberty to apply for a variation of the costs order and, if so, whether the application should be granted.

The court examined the relevant rules and precedents concerning the variation of costs orders. It determined that while there is a general liberty to apply for such a variation, the cross-appellant's application did not meet the necessary criteria. The court found that the cross-appellant had not demonstrated any new or compelling circumstances warranting a departure from the original order. Consequently, the court held that the cross-appellant did not have the liberty to apply for a variation of the costs order.

As a result, the court vacated the previous order and substituted it with a new order stating there would be no costs order in respect of the cross-appeal. Additionally, the court dismissed the Notice of Motion filed by the cross-appellant and ordered that the cross-appellant pay the costs of the cross-respondent in relation to the Notice of Motion. This decision clarified the process and criteria for varying costs orders and reinforced the importance of demonstrating new circumstances to justify such a variation.

Orders

Orders of the court

1. Order 4 as made on 18 March 2011 is vacated and in lieu thereof it is ordered that

“4. There be no order as to costs in respect to the cross-appeal.”

2. The Notice of Motion as filed on 24 March 2011 is otherwise dismissed.

3. The cross-appellant is to pay the costs of the cross-respondent in respect to the said Notice of Motion.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.