Gould, Stephen v Day, Julian

[1998] FCA 589

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 225 of 1997

BETWEEN:	STEPHEN GOULD APPLICANT
AND:	JULIAN DAY RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	22 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

Before me is a Notice of Motion dated 15 May 1998, whereby Julian Day seeks an order that the appeal brought by Mr Stephen Gould against a decision of his Honour Wilcox J on 18 May 1998 not to award costs, is incompetent. The reason given by Mr Day for this submission is that the appeal is in respect of an interlocutory matter and that leave is therefore necessary before an appeal can be taken from a decision on such a matter to the Full Court from a decision of a single Judge: see s 24 1(A) of the Federal Court of Australia Act, which provides:

“1(A).  An appeal shall not be brought from a judgment referred to in subsection 1 that is an interlocutory judgment unless the court or a judge gives leave to appeal.  The appeals referred to in subsection 1 include appeals from judgments of the court constituted by a single judge.”

The decision of his Honour is interlocutory.  On 29 January 1998, in relation to an application to set aside a bankruptcy notice, his Honour set aside a number of subpoenas which had been issued by Mr Day and directed Mr Day to notify the persons on whom the subpoenas were served, that they had been set aside and need not be answered.  His Honour made no award as to costs on that decision.

The hearing date for the principal matter, namely the application to set aside the bankruptcy notice, was vacated and the hearing of that application was then fixed before his Honour on 20 February 1998.  On that date his Honour considered submissions made in relation to the application to set aside the bankruptcy notice and dismissed the motion but extended the time for compliance to 13 March 1998.

On 18 March 1998, his Honour considered an application by Mr Gould for costs in relation to the subpoenas which had been struck out by his Honour on 29 January 1998.  His Honour decided not to award those costs.  The reasons given by his Honour are not apparent from the record but later on that day his Honour dismissed further motions seeking leave to appeal out of time against his Honour's earlier orders and he made a number of other orders.  It appears that the appellant has not sought or obtained leave to appeal from his Honour's order made at 10.15 am on that date, but this morning Mr Gould made an application before me for leave to appeal against the decision notwithstanding that it had been made out of time.

I think it is appropriate for me to grant leave to make the application before me in order that the matter can be considered.  However, having examined the documents placed before me and considered the affidavits, I am not persuaded that it has been shown that any error was made by his Honour in reaching the conclusion which he did.  Costs are questions which are at the discretion of the Judge hearing the primary matter and the discretion is unfettered by any reference to specific considerations but it must be exercised judicially.

The issue of subpoenas is a question which arises as part of the preparation and conduct of the proceedings.  His Honour was no doubt well seised of the context in which the argument arose when making his order in relation to costs.  There is nothing before me to indicate that his Honour erred in principle relating to the question of costs.  Accordingly, I am not persuaded that this is a situation in which leave ought to be granted to appeal from the decision of his Honour to the Full Court.

It will frequently happen that, in the course of proceedings when the matter is looked at as a whole after considering all the arguments and the evidence given by the parties in the proceedings, one cannot isolate out particular matters as being appropriate for the separate allocation of costs.  It seems to me, in the present case, that there is no reasonable basis for any real possibility of success for challenging the broad discretion which his Honour has exercised in the present case.

For these reasons, I do not grant leave to appeal from the order of his Honour in relation to the costs of the subpoenas.  It follows that the appeal lodged must be dismissed.  So far as the costs of the application to dismiss the notice of appeal, I consider that Mr Day, having succeeded in this question, should have the costs of this application.

In relation to the appeal, it follows that the appeal being incompetent is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             22 May 1998

Both Parties appeared in person
Date of Hearing:	22 May 1998
Date of Judgment:	22 May 1998