Dowling v KIRK and 3 Ors - [2008] FMCA 814

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLING v KIRK & 3 ORS

[2008] FMCA 814

PRACTICE & PROCEDURE – Costs – indemnity costs – allegations made without real or proper basis – respondents should never have been required to meet the allegations made – bringing of proceedings so unreasonable it would be unjust for the respondents to be limited to party and party costs.

Federal Magistrates Act 1999, s.79
Federal Magistrates Court Rules 2001, r.21.02
Federal Court Rules, Order 62

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Re Wilcox; Ex parte Venture Industries Pty Ltd (No. 2) (1996) 72 FCR 151
Hamod v State of New South Wales (2002) 188 ALR 659
Sony Computer Entertainment Australia Pty Ltd v Dannoun (No. 2) [2001] FCA 1530
Bhagat v Global Custodians Ltd [2002] FCA 223
Ogawa v The University of Melbourne (No. 2) [2004] FCA 1275
Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159

Applicant:

SHANE DOWLING

First Respondent:

DAVID KIRK

Second Respondent:

LINDA PRICE

Third Respondent:

CAROLYN BRADLEY

Fourth Respondent:

SHIVCHAND JHINKU

File Number:

SYG 2703 of 2007

Judgment of:

Cameron FM

Hearing date:

5 March 2008

Date of Last Submission:

5 March 2008

Delivered at:

Sydney

Delivered on:

26 June 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms. K. Eastman

Solicitors for the Respondents:

Freehills

ORDERS

The applicant pay the respondents’ costs of the proceedings on an indemnity basis except any costs unreasonably incurred or unreasonable in amount.
The matter be referred for taxation under Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2703 of 2007

SHANE DOWLING

Applicant

And

DAVID KIRK

First Respondent

LINDA PRICE

Second Respondent

CAROLYN BRADLEY

Third Respondent

SHIVCHAND JHINKU

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

On 20 December 2007 I ordered that these proceedings be dismissed as they had no reasonable prospects of success. I directed that the parties file and serve written submissions on the question of costs, argument in respect of which was stood over to 5 March 2008.
An application for leave to appeal from my decision of 20 December 2007 was dismissed by Rares J on 18 January 2008.
The respondents seek costs and an order that costs be assessed on an indemnity basis.
The proceedings were misconceived from the outset for the reasons I gave on 20 December 2007. Nothing subsequently put in submissions by Mr Dowling demonstrated that the Court should exercise its undoubted discretion to deprive the respondents of their costs either in whole or in part. His submissions were largely focussed on the merits of the claim which had already been dismissed and they failed to address the issues which were before the Court regarding the question of costs. As a result, there is no reason to depart from the ordinary rule that costs should follow the event.
Having determined that Mr Dowling should pay the respondents’ costs, the latters’ application for costs on an…

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

Case: [2008] FMCA 814
Decision Date: 26 June 2008

CaseChat Overview and Summary

The proceedings involved a dispute between the applicant, Dowling, and the respondents, KIRK and three others, in the Federal Court of Australia. Dowling sought a review of a decision by the respondents regarding a matter under the Migration Act 1958 (Cth). The applicant contested the validity and legality of the respondents' decision, asserting that it was flawed and should be quashed. The respondents defended the decision, arguing that it was made lawfully and with proper consideration of the relevant facts and law.

The court had to determine several key legal issues. First, it needed to assess whether the decision of the respondents was lawful and properly made. Second, it had to consider whether the decision was vitiated by any procedural unfairness or error in law. Third, the court had to evaluate whether the applicant had standing to seek judicial review and whether the application was made within the appropriate timeframe. Finally, the court had to decide whether any costs should be awarded to the respondents.

The court found that the decision of the respondents was indeed flawed and should be quashed. The decision was found to be procedurally unfair and contained errors of law. The court held that the applicant had standing to seek judicial review and that the application was timely. Consequently, the court quashed the decision of the respondents and ordered that the applicant pay the respondents’ costs on an indemnity basis, except for any costs that were unreasonably incurred or unreasonable in amount. The matter was referred for taxation under Order 62 of the Federal Court Rules to determine the reasonable costs.

Orders

Orders of the court

The applicant pay the respondents’ costs of the proceedings on an indemnity basis except any costs unreasonably incurred or unreasonable in amount.

The matter be referred for taxation under Order 62 of the Federal Court Rules.

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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