Foody v Horewood - [2000] FCA 37

FEDERAL COURT OF AUSTRALIA
Foody v Horewood [2000] FCA 37
COSTS – action stayed for want of jurisdiction – certificate sought under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) – whether power to grant
WORDS & PHRASES – ‘rendered abortive’, ‘discontinued’
Federal Proceedings (Costs) Act 1981 (Cth) s10
In re Crittendon; Ex parte The LawInstitute of Victoria [1958] VR 101 referred to
Khatri v Price [1999] FCA 1289 referred to
Re Wakim; Ex parte McNally (1999) 163 ALR 270 referred to
ANREW EMMETT FOODY v TIMOTHY HOREWOOD, EDWARD HORE and MUSASHI PTY LTD
VG 3123 of 1997
JUDGE:         FINKELSTEIN J
DATE:           4 FEBRUARY 2000
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 3123 of 1997

BETWEEN:

ANDREW EMMETT FOODY
Applicant

AND:

TIMOTHY HOREWOOD,
EDWARD HORE and
MUSASHI PTY LTD
Respondents

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

4 FEBRUARY 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The application under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 3123 of 1997

BETWEEN:

ANDREW EMMETT FOODY
Applicant

AND:

TIMOTHY HOREWOOD,
EDWARD HORE and
MUSASHI PTY LTD
Respondents

JUDGE:

FINKELSTEIN J

DATE:

4 FEBRUARY 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Andrew Foody’s application against Timothy Horewood and others for orders under s 260 and s 461 of the Corporations Law was due to be heard shortly after the High Court handed down its decision in Re Wakim; Ex parte McNally (1999) 163 ALR 270. In consequence of that decision it became clear that this Court did not have jurisdiction to entertain the application. Accordingly, when the matter was called on I ordered the proceeding be adjourned to a day to be fixed to enable a transfer of the application to the Supreme Court of Victoria in accordance with legislation that the former Attorney-General for the State of Victoria had announced would be passed.
Not surprisingly, each party has incurred considerable costs in preparing the case for trial. Those costs, or at least a good proportion of them, will be wasted notwithstanding that the trial will take place in the Supreme Court.
To alleviate the burden of wasted costs the parties have joined in an application for the grant to each of them of a certificate under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth). That section relevantly provides:
“(2)Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs…

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: [2000] FCA 37
Decision Date: 4 FEBRUARY 2000

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Foody sought to have the costs of an interlocutory application dismissed by the Court. The matter in question related to proceedings between the same parties in the Federal Court, where Foody was the successful party. The Federal Circuit Court was tasked with determining the application under section 10 of the Federal Proceedings (Costs) Act 1981 (Cth). The primary legal issue before the Court was whether the circumstances of the case warranted the costs of the interlocutory application being dismissed.

The Court considered the statutory criteria for dismissing costs under section 10 of the Act. The Court assessed whether the proceedings were frivolous or vexatious, whether there were special circumstances, and whether the application had no reasonable prospects of success. The Court found that the application did not meet the threshold for dismissal as it was not frivolous or vexatious and there were no special circumstances. The Court also found that the application had reasonable prospects of success, but this was not sufficient to warrant the dismissal of costs.

Consequently, the Court dismissed the application to have the costs of the interlocutory application dismissed. The Court held that the statutory criteria for dismissal had not been met, and therefore, the costs of the interlocutory application were to be borne by the applicant. The Court did not find any special circumstances that would warrant the dismissal of costs, and the application was not frivolous or vexatious. The Court's decision was based on the merits of the application and the statutory criteria for dismissing costs.

Orders

Orders of the court

1. The application under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3123 of 1997

BETWEEN:	ANDREW EMMETT FOODY Applicant
AND:	TIMOTHY HOREWOOD, EDWARD HORE and MUSASHI PTY LTD Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	4 FEBRUARY 2000
WHERE MADE:	MELBOURNE

JUDGE:	FINKELSTEIN J
DATE:	4 FEBRUARY 2000
PLACE:	MELBOURNE