Davey v Dessco Pty Ltd

[2019] FCA 1735

FEDERAL COURT OF AUSTRALIA

Davey v Dessco Pty Ltd [2019] FCA 1735

File number:

VID 321 of 2019

Judge:

SNADEN J

Date of judgment:

18 October 2019

Date of publication of reasons:

21 October 2019

Catchwords:

PRACTICE AND PROCEDURE – costs – interim application by the respondent to review a costs order made by a registrar of the court – application of Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 (“Bell”) – abolition of the “Chorley exception” – where a costs order is made in favour of a self-represented litigant who is also a lawyer – whether phrasing of costs order ought to be confined to out of pocket expenses – interim application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 35A

Federal Court Rules 2011 (Cth) rr 3.11, 35.13(b)

Cases cited:

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29

Date of hearing:

18 October 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the Respondent:

Mr R D Silverstein

ORDERS

VID 321 of 2019

BETWEEN:

JOHN PATRICK DAVEY

Applicant

AND:

DESSCO PTY LTD ACN 072 755 590

Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	18 OCTOBER 2019

THE COURT ORDERS THAT:

1.The respondent’s interim application filed 9 October 2019 is dismissed.

2.The respondent pay the applicant’s costs of and incidental to the interim application as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

VID 321 of 2019

BETWEEN:

JOHN PATRICK DAVEY

Applicant

AND:

DESSCO PTY LTD ACN 072 755 590

Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	21 OCTOBER 2019

THE COURT ORDERS THAT:

1.The deadline by which the respondent must file an application for leave to appeal the orders made herein on Friday, 18 October 2019 is Monday, 4 November 2019.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1. On 3 October 2019, a registrar of the court heard two applications by the applicant to have two bankruptcy notices set aside.  Both applications succeeded.  The registrar concluded that the bankruptcy notices constituted an abuse of process (in that they were issued for an improper purpose, namely to bring pressure to bear upon the applicant to hinder his prosecution of other litigation) and set them aside on that basis.   The respondent was ordered to pay the applicant’s costs.

2. The respondent then applied under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) for a review of that decision to award costs. The more substantive orders (by which the bankruptcy notices were set aside) was not challenged.

3. The respondent’s application came before me for case management on Friday, 18 October 2019.  With the consent of the parties, I proceeded to hear the application there and then, following which I…