Goldie v The Commonwealth of Australia

Case [2004] FCA 973

FEDERAL COURT OF AUSTRALIA
Goldie v The Commonwealth of Australia [2004] FCA 973

BRIAN GERALD JAMES GOLDIE v THE COMMONWEALTH OF AUSTRALIA
W61 of 2004

CARR J
23 JULY 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W61 OF 2004

BETWEEN:

BRIAN GERALD JAMES GOLDIE
APPLICANT

AND:

THE COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JEFFREY TUNBRIDGE
THIRD RESPONDENT

ANTHONY BATTAGLINI
FOURTH RESPONDENT

ROSS GREGG
FIFTH RESPONDENT

MICHAEL CAIN
SIXTH RESPONDENT

JAMIE McCORMACK
SEVENTH RESPONDENT

THOMAS HOENIG
EIGHTH RESPONDENT

DONNA RIORDAN
NINTH RESPONDENT

JUDGE:

CARR J

DATE OF ORDER:

23 JULY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the first and second respondents’ costs of the appeal and the motion and the costs (if any) of the other respondents to the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W61 OF 2004

BETWEEN:

BRIAN GERALD JAMES GOLDIE
APPLICANT

AND:

THE COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JEFFREY TUNBRIDGE
THIRD RESPONDENT

ANTHONY BATTAGLINI
FOURTH RESPONDENT

ROSS GREGG
FIFTH RESPONDENT

MICHAEL CAIN
SIXTH RESPONDENT

JAMIE McCORMACK
SEVENTH RESPONDENT

THOMAS HOENIG
EIGHTH RESPONDENT

DONNA RIORDAN
NINTH RESPONDENT

JUDGE:

CARR J

DATE:

23 JULY 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. This is a motion on notice by the first and second respondents for an order that the appeal in this matter be dismissed with costs for want of prosecution.

  2. Alternatively the first and second respondents seek orders that the appellant provide security in the sum of $5,000 for their costs of the appeal, and that the appeal be dismissed with costs in the event that such security is not provided by the appellant within 14 days.

  3. The power of a single judge to make an order that an appeal be dismissed for want of prosecution is conferred by s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) when read with order 52 rule 38(1) of the Federal Court Rules.

  4. The power to order an appellant to give security for payment of costs is conferred by s 56(1) of the Federal Court Act.  Order 52 rule 20 of the Federal Court Rules provides that unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required. 

    FACTUAL AND PROCEDURAL BACKGROUND

  5. This recitation of the factual and procedural background is taken from the written outline of submissions of the first and second respondents.

  6. The appellant is a non-citizen who entered Australia on 4 December 1992.  He remained in Australia and, on 24 February 1998 he was taken into immigration detention in the mistaken belief that he did not hold a valid visa.  The appellant had in fact held a valid Bridging Visa at the time of his detention.  He was subsequently granted a Bridging E Visa…

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Details
AGLC
Goldie v The Commonwealth of Australia [2004] FCA 973
Case
[2004] FCA 973
Decision Date

CaseChat Overview and Summary

The case of Goldie v The Commonwealth of Australia involves Goldie, a non-citizen, who was unlawfully detained by Australian authorities due to a misunderstanding about his visa status. Goldie initiated legal proceedings against the Commonwealth and various government officials, seeking damages for wrongful arrest and imprisonment. The court assessed damages and ordered the respondents to pay $22,000 to Goldie. Despite this award, Goldie has accumulated additional costs in other legal proceedings, totaling $63,775.80, which he has failed to pay despite demands. The Commonwealth has appealed against an order that it pay certain costs incurred by Goldie in these proceedings.

The central legal issue before the court was whether the Commonwealth should be required to provide security for the costs of the appeal and the motion filed by Goldie. This matter hinged on the interpretation of s 56(1) of the Federal Court Act and Order 52 rule 20 of the Federal Court Rules, which outline the circumstances under which security for costs may be required in an appeal to the Federal Court. The court had to determine whether the exceptional circumstances existed that would justify ordering the appellant to provide security for costs, considering the appellant's failure to pay previous costs and his substantial indebtedness to the Commonwealth.

In dismissing the appeal, the court found that the appellant's conduct in failing to pay previous costs and his substantial indebtedness to the Commonwealth constituted exceptional circumstances warranting the order of security for costs. The court reasoned that the appellant's conduct demonstrated a pattern of non-compliance with court-ordered payments, which justified the need for security to protect the respondents from potential financial loss. Consequently, the court held that the appellant should be required to provide security for the costs of the appeal and the motion, as well as any costs incurred by the other respondents.

The court ordered that the appeal be dismissed and that the appellant pay the first and second respondents' costs of the appeal and the motion, along with the costs (if any) of the other respondents to the appeal. This decision underscored the importance of adhering to court-ordered financial obligations and highlighted the court's power to impose security for costs in cases where exceptional circumstances exist.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first and second respondents’ costs of the appeal and the motion and the costs (if any) of the other respondents to the appeal.

Note:

Background

Background to the litigation

The power to order an appellant to give security for payment of costs is conferred by s 56(1) of the Federal Court Act. Order 52 rule 20 of the Federal Court Rules provides that unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required. FACTUAL AND PROCEDURAL BACKGROUND This recitation of the factual and procedural background is taken from the written outline of submissions of the first and second respondents. The appellant is a non-citizen who entered Australia on 4 December 1992. He remained in Australia and, on 24 February 1998 he was taken into immigration detention in the mistaken belief that he did not hold a valid visa. The appellant had in fact held a valid Bridging Visa at the time of his detention. He was subsequently granted a Bridging E Visa and released from detention on 27 February 1998 (i.e. 3 days later). The appellant subsequently commenced proceedings in this Court claiming damages and a variety of other relief against the first and second respondents and the various officers of the Department of Immigration and Multicultural and Indigenous Affairs listed above as the third to ninth respondents. On 22 December 2000, French J dismissed that application: Goldie v The Commonwealth (2000) 180 ALR 609. The appellant appealed against that order. On 12 April 2002, a Full Court of this Court, by a majority (Gray and Lee JJ, Stone J dissenting) allowed that appeal in part: Goldie v The Commonwealth (2002) 117 FCR 566 and remitted the matter to French J for assessment of damages in respect of the appellant’s wrongful arrest on 24 February 1998 and his subsequent unlawful detention until 27 February 1998. French J made directions for the filing of further affidavits. He granted leave to the appellant to file and serve any further affidavits on or before 15 November 2002. By consent, the date for the appellant to file any further affidavit evidence in those proceedings was extended to 15 April 2003. On 18 August 2003 the appellant applied to have the hearing of the assessment of damages adjourned to enable an application for a more general stay to be made. That application was dismissed by French J on the same date. The hearing of the assessment of damages took place on 1 September 2003. A further application by the appellant for an adjournment of the hearing was refused by French J. On 27 February 2004 French J delivered judgment on the assessment of damages. He ordered that the first, second and sixth respondents pay the appellant damages for wrongful arrest and imprisonment in the sum of $22,000. The appellant has sued the second respondent and others in various proceedings (at least eight applications) in the High Court of Australia and in this Court. As a result of those proceedings the appellant is presently indebted to the second respondent in the sum of $63,775.80 pursuant to certificates of taxation for costs in those various proceedings. That is, after taking into account the award of damages of $22,000, the appellant remains liable to pay to the second respondent the sum of $41,775.80. The uncontradicted evidence before me is that, despite demand for payment, the appellant has failed to pay or make any proposal to pay any part of those costs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CARR J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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