Dunne v Noonan - [2009] FMCA 362

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNNE v NOONAN

[2009] FMCA 362

HUMAN RIGHTS – Alleged racial discrimination – interlocutory application to have consent orders vacated and more broad-based injunction ordered – serious question to be tried – balance of convenience – matter of third party publication – whether applicant’s conduct constitutes acquiescence – application to vary existing injunction dismissed.

Human Rights and Equal Opportunity Discrimination Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth)

Archibold v Scully (1861) 9 HLC 360
Castlemaine Tooheys v South Australia (1986) 161 CLR 148
Coles Supermarkets Australia Pty Limited v Southland Developments Pty Ltd [2008] NSWSC 1425
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
Jackson v Stirling Industries (1987) 162 CLR 612
Jones v Scully (2002) 120 FCR 243
Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414
Patrick Stevedores Holding Pty Ltd v Maritime Union of Australia (1998) 88 IR 34

Dr Spry CF, Equitable Remedies (7th ed, Law Book Co, 2007)

Applicant:

MAY LULU DUNNE

Respondent:

MICHAEL NOONAN

File No:

BRG 4 of 2009

Delivered on:

22 April 2009

Delivered at:

Brisbane

Hearing date:

15 April 2009

Judgment of:

Burnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Fleming QC

Solicitors for the Applicant:

Kerin & Co Lawyers

Counsel for the Respondent:

Mr Ashton

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

That the Application in a Case filed 8 April 2009 be dismissed.
That in the event that no application is made by either party within seven days for any other orders concerning costs, the order of the Court will be that the applicant pay the first respondent's costs of and incidental to the Application in a Case filed 8 April 2009 such costs to be assessed and that such costs be the first respondent's costs in the cause in any event.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 4 of 2009

MAY LULU DUNNE

Applicant

And

MICHAEL NOONAN

Respondent

REASONS FOR JUDGMENT

Introduction

On 25 February 2009 consent orders were made in the following terms, that is, inter alia:
“Until further order the first respondent will not publish at large or in any other way deal with the film footage taken of the applicant save for in the course necessary for completion of his PhD which may include the footage being shown to his named PhD supervisors and their nominated PhD examiners.”
The applicant now applies to have this order vacated and in its place have a broad-based injunction ordered in terms that the first respondent will not publish at large or in any other way deal with the film footage taken of the applicant.
The second, third and fourth respondents did not engage in this application. They are content to abide by the orders of the Court.
There is no dispute between the applicant and the first respondent concerning the approach to be taken by the Court. As submitted by the respondent’s counsel, the principles…

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.

Continue reading Dunne v Noonan

Details

AGLC: Dunne v Noonan [2009] FMCA 362
Case: [2009] FMCA 362
Decision Date: 22 April 2009

CaseChat Overview and Summary

Dunne v Noonan involved a dispute between two parties, Dunne and Noonan, before the court. The specifics of the dispute are not detailed in the excerpt, but it pertains to an application filed by Dunne on 8 April 2009, which was subsequently dismissed by the court. The court was tasked with determining whether Dunne's application warranted any relief and, if so, the appropriate orders concerning costs.

The primary legal issue before the court was whether Dunne's application should be granted and, if not, what orders should be made regarding the costs incurred by both parties. The court had to consider the merits of Dunne's application and assess the necessity of any further orders concerning costs, given that neither party had applied for such orders within the stipulated timeframe.

The court dismissed Dunne's application, finding it did not merit any relief. The court further ruled that, in the absence of any further applications for orders concerning costs within seven days, Dunne would be liable for Noonan's costs of and incidental to the application. These costs would be assessed and would become Noonan's costs in the overall proceeding. The court's decision was clear and definitive, leaving no ambiguity regarding the outcome or the financial responsibilities of the parties involved.

Orders

Orders of the court

That the Application in a Case filed 8 April 2009 be dismissed.

That in the event that no application is made by either party within seven days for any other orders concerning costs, the order of the Court will be that the applicant pay the first respondent's costs of and incidental to the Application in a Case filed 8 April 2009 such costs to be assessed and that such costs be the first respondent's costs in the cause in any event.

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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