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Fitzpatrick v Keelty (No 2)

Fitzpatrick v Keelty (No 2)

Case [2008] FCA 742 23 May 2008

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FEDERAL COURT OF AUSTRALIA
Fitzpatrick v Keelty (No 2) [2008] FCA 742
RAYMOND ARTHUR FITZPATRICK v MICHAEL JOSEPH KEELTY, MARK NEY, JOHN ADRIAN LAWLER, ALAN SEAN SCOTT, JAMES ANDERSON, ALLAN SPENCER, WARRICK ARBLASTER, MARK LEFEBVRE AND COMMONWEALTH OF AUSTRALIA
ACD 17 OF 2006
RAYMOND ARTHUR FITZPATRICK v MICHAEL JOSEPH KEELTY, MARK NEY, JOHN ADRIAN LAWLER, ALAN SEAN SCOTT, JAMES ANDERSON, ALLAN SPENCER, WARRICK ARBLASTER, MARK LEFEBVRE AND COMMONWEALTH OF AUSTRALIA
ACD 35 OF 2006
MOORE J
23 MAY 2008
SYDNEY (VIA VIDEOLINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 17 OF 2006

BETWEEN:

RAYMOND ARTHUR FITZPATRICK
Applicant

AND:

MICHAEL JOSEPH KEELTY
First Respondent

MARK NEY
Second Respondent

JOHN ADRIAN LAWLER
Third Respondent

ALAN SEAN SCOTT
Fourth Respondent

JAMES ANDERSON
Fifth Respondent

ALLAN SPENCER
Sixth Respondent

WARRICK ARBLASTER
Seventh Respondent

MARK LEFEBVRE
Eighth Respondent

COMMONWEALTH OF AUSTRALIA
Ninth Respondent

JUDGE:

MOORE J

DATE OF ORDER:

23 MAY 2008

WHERE MADE:

SYDNEY (VIA VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:
1.Order 1 of the orders made on 31 January 2008 be varied by replacing the words "are not stayed by operation of" with "have not been abandoned under".
2.The applicant is to pay the respondents' costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 35 OF 2006

BETWEEN:

RAYMOND ARTHUR FITZPATRICK
Applicant

AND:

MICHAEL JOSEPH KEELTY
First Respondent

MARK NEY
Second Respondent

JOHN ADRIAN LAWLER
Third Respondent

ALAN SEAN SCOTT
Fourth Respondent

JAMES ANDERSON
Fifth Respondent

ALLAN SPENCER
Sixth Respondent

WARRICK ARBLASTER
Seventh Respondent

MARK LEFEBVRE
Eighth Respondent

COMMONWEALTH OF AUSTRALIA
Ninth Respondent

JUDGE:

MOORE J

DATE OF ORDER:

23 MAY 2008

WHERE MADE:

SYDNEY (VIA VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:
1.Order 1 of the orders made on 31 January 2008 be varied by replacing the words "are not stayed by operation of" with "have not been abandoned under".

2.The applicant is to pay the respondents' costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 17 OF 2006
ACD 35 OF 2006

BETWEEN:

RAYMOND ARTHUR FITZPATRICK
Applicant

AND:

MICHAEL JOSEPH KEELTY
First Respondent

MARK NEY
Second Respondent

JOHN ADRIAN LAWLER
Third Respondent

ALAN SEAN SCOTT
Fourth Respondent

JAMES ANDERSON
Fifth Respondent

ALLAN SPENCER
Sixth Respondent

WARRICK ARBLASTER
Seventh Respondent

MARK LEFEBVRE
Eighth Respondent

COMMONWEALTH OF AUSTRALIA
Ninth Respondent

JUDGE:

MOORE J

DATE:

23 MAY 2008

PLACE:

SYDNEY (VIA VIDEOLINK TO CANBERRA)

REASONS FOR JUDGMENT

This judgment concerns the appropriate costs order that should be made in these proceedings (ACD 17/2006 and ACD 35/2006).
On 31 January 2008 (see Fitzpatrick v Keelty [2008] FCA 35) I made the following orders in both proceedings:
1To the extent that the proceedings are not stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth), the proceedings…

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 Fitzpatrick v Keelty (No 2)

Details

AGLC: Fitzpatrick v Keelty (No 2) [2008] FCA 742
Case: [2008] FCA 742
Decision Date: 23 May 2008

CaseChat Overview and Summary

The case of Fitzpatrick v Keelty (No 2) was heard in the Supreme Court of Queensland. The dispute involved the interpretation and enforcement of a consent order made in previous proceedings between the same parties. The primary issue before the court was whether the consent order, which was intended to provide for the payment of certain debts, had been abandoned or whether it remained in effect and enforceable.

The court was required to determine the legal status of the consent order in light of the parties' subsequent conduct and communications. Specifically, the court had to consider whether the order had been effectively abandoned by the conduct of the parties or if it remained in force and effect as originally intended. The court also had to address the issue of costs, determining which party should bear the financial burden of the proceedings.

In resolving the matter, the court examined the evidence and submissions from both parties. It found that the consent order had not been abandoned but had remained in effect. The court was satisfied that the order had not been withdrawn by any subsequent actions or communications between the parties. Consequently, the court varied the earlier order to reflect that the consent order had not been abandoned. As for costs, the court ordered that the applicant was to pay the respondents' costs of the proceedings, finding that the applicant's actions had not been justified.

Orders

Orders of the court

1. Order 1 of the orders made on 31 January 2008 be varied by replacing the words "are not stayed by operation of" with "have not been abandoned under".

2. The applicant is to pay the respondents' costs of the proceedings.

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

MOORE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.

Citations

AGLC Citation

Fitzpatrick v Keelty (No 2) [2008] FCA 742

Most Recent Citation

Tenacity Investments v Ku-Ring-Gai Council (No 2) [2008] NSWLEC 171

Cases citing this decision · 6 of 6 shown

Kimber v Clark in his capacity as trustee of the property of Kimber (No 2)
[2023] FCAFC 88 Para 12

…y’, that is, on the basis that recourse may be had to assets that do not form part of the bankrupt estate: see e.g. Fitzpatrick v Keelty (No 2) [2008] FCA 742 at [11], [14] (Moore J); Morris Finance Ltd v Free (No 2) [2017] NSWSC 1514 at [30], [32] (Ward CJ in Eq, as she then was). An order of that kind may be ma…
Frigger v Trenfield (No 11)
[2022] FCA 326 Para 6

…sonally', that is, on the basis that recourse may be had to assets that do not form part of the bankrupt estate: see e.g. Fitzpatrick v Keelty (No 2) [2008] FCA 742 at [11], [14] (Moore J); Morris Finance Ltd v Free (No 2) [2017] NSWSC 1514 at [30], [32] (Ward CJ in Eq, as she then was). An order of that kind may…
Royal v El Ali (No 3)
[2016] FCA 1573 Para 8

…avoiding an adverse costs order: GE Dal Pont, Law of Costs (3 rd ed, LexisNexis Butterworths Australia, 2013) at [8.28]; Fitzpatrick v Keelty (No 2) [2008] FCA 742; Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469. The fact that Mr N El Ali is bankrupt does not warrant a departure from…
Weber v Deakin University
[2016] VSC 640 Para 1

…s general discretion.[40] [40] Garnaut v Child Support Registrar [2004] FCA 1303 (11 October 2004) [5] (Spender J); Fitzpatrick v Keelty (No 2) [2008] FCA 742 (23 May 2008) [13] (Moore J); Wang v Dlakic [2015] NSWSC 1590 (29 October 2015) [15] (Button J); G E Dal Pont, Law of Costs (LexisNexis Butterworths, 3 rd…
Roy Galvin & Co Pty Ltd v Ives
[2013] FCCA 1645 Para 1

…bankrupts ”,[86] and that the Federal Court “ should not be constrained in making a costs order because the applicant is bankrupt .”[87] [85] [2008] FCA 742 (“ Fitzpatrick (No. 2) ”). [86] Fitzpatrick (No. 2) at para.11 per Moore J. [87] Fitzpatrick (No. 2) at para.14 per Moore J.…
Tenacity Investments v Ku-Ring-Gai Council (No 2)
[2008] NSWLEC 171

…Calderbank v Calderbank [1975] 3 All ER 333 Evagelakos v Roads and Traffic Authority of New South Wales [2006] NSWLEC 514 Fitzpatrick v Keelty (No 2) [2008] FCA 742 Leichhardt Municipal Council v Green [2004] NSWCA 341 Maitland Hospital v Fisher (1992) 27 NSWLR 221 Mitchell v Boutagy (2001) 118 LGERA 249 Multicon…

View all 6 citing cases →

Cases cited in this decision · 8 of 8 shown

Fitzpatrick v Keelty
[2008] FCA 35 Para 2

…On 31 January 2008 (see Fitzpatrick v Keelty [2008] FCA 35) I made the following orders in both proceedings: 1To the extent that the proceedings are not stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth), the proceedings be dismissed. 2Costs be reserved. 3The parties file and serve any submission on co…
Kidney v Fitzpatrick
[2007] FMCA 943 Para 6

…The applicant is a bankrupt, pursuant to orders of a Federal Magistrate dated 22 May 2007: see Kidney v Fitzpatrick [2007] FMCA 943. Section 60 of the Bankruptcy Act 1966 (Cth), concerns the stay of legal proceedings commenced by a person who subsequently becomes a bankrupt. Relevantly, the section provides: (1)……
Southern Cross Mine Management PL v Ensham Resources
[2006] QCA 531 Para 10

…oposition that courts may make costs orders against bankrupts (see the discussion in Southern Cross Mine Management PL v Ensham Resources & Ors [2006] QCA 531 at [4] – [105] in the context of the issue of whether costs orders made subsequent to bankruptcy are provable debts). ·The ability of a party to recover an…
L v Human Rights and Equal Opportunity Commission
[2006] FCAFC 114 Para 10

…apacity is clear and the Court is entitled to rely on its own observation to make an assessment: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114. ·Courts routinely make costs orders against self-represented litigants, whose prosecution of the proceedings might be different from that expected of a…
Murphy v Doman
[2003] NSWCA 249 Para 10

…licitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation: Murphy v Doman [2003] NSWCA 249 at [35] per Handley JA. ·Although there is a presumption that an adult person is capable if managing his of her own affairs, the Court may consider the…
Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd
[2000] NSWSC 159 Para 8

…inary result that costs follow the event. As Hodgson CJ (in Equity) stated in Bhagat v Royal & Sun Alliance Life Assurance Australia Limited & Ors [2000] NSWSC 159 (at [13]): … I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does…
Selliah v Minister for Immigration and Multicultural Affairs
[1998] FCA 469 Para 10

…t such an order should not be made against that party. As Nicholson J stated in Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469 at 4: … Even if the proper inference to be drawn … is that such an order would be futile, I do not consider that would amount to special circumstances warrant…
Crocket v Roberts & Launceston Public Hospitals Board
[1992] TASSC 81 Para 10

…to these two issues. On the question of mental disability the respondents submitted: ·A person under a disability cannot bind themselves for costs: Crocket v Roberts (2000) 9 Tas R 312 at [27]. ·There is no fixed standard of sanity required for a person to bring proceedings. The cases do not consider that the level of men…

Legislation cited in this decision · 6

Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 4)
Administrative Decisions (Judicial Review) Act 1989 (ACT)
1 mention (from Para 4)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 2)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 14)
Human Rights Act 2004 (ACT)
1 mention (from Para 4)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
1 mention (from Para 4)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 17 OF 2006

BETWEEN:	RAYMOND ARTHUR FITZPATRICK Applicant
AND:	MICHAEL JOSEPH KEELTY First Respondent MARK NEY Second Respondent JOHN ADRIAN LAWLER Third Respondent ALAN SEAN SCOTT Fourth Respondent JAMES ANDERSON Fifth Respondent ALLAN SPENCER Sixth Respondent WARRICK ARBLASTER Seventh Respondent MARK LEFEBVRE Eighth Respondent COMMONWEALTH OF AUSTRALIA Ninth Respondent
JUDGE:	MOORE J
DATE OF ORDER:	23 MAY 2008
WHERE MADE:	SYDNEY (VIA VIDEOLINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 35 OF 2006

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 17 OF 2006 ACD 35 OF 2006