Harriss, Robert William v Fluid Energy Systems Pty Ltd - [1995] FCA 860

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )          NG 139 of 1995
  )
GENERAL DIVISION  )

ROBERT WILLIAM HARRISS
Applicant

NAVETRON PTY LIMITED
Second Applicant

FLUID ENERGY SYSTEMS PTY LIMITED
Respondent

Coram: Whitlam J
Place: Sydney

Date:31 July 1995

REASONS FOR JUDGMENT
(Ex Tempore)
By notice of motion filed in court this morning the applicants seek the following orders:

"1.A new hearing date be assigned to these proceedings, with expedition.

2.The Applicants be granted leave to approach the Registrar forthwith to obtain a new expedited hearing date.

3.Pursuant to Section 10 of the Federal Proceedings (Costs) Act, 1981 that the Applicants be granted a Costs Certificate stating "that in the opinion of the Court it would be appropriate for the Commonwealth Attorney-General to authorise payment under the Federal Proceedings (Costs) Act 1981 to the Applicants in respect of such part as the Attorney General considers appropriate of any costs incurred by the Applicants in relation to these proceedings."

Section 10 of the Federal Proceedings (Costs) Act 1981 ("the Act") provides:

"(1) This section applies to the High Court, the Federal Court, the Family Court and a court of a Territory.

(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 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 certificate in respect of the proceedings.

(3)Subject to this Act, where:

(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and

(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;

the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

(4)The certificate that may be granted under sub-section (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.

(5)A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court."

The jurisdiction conferred by the Act may be exercised in chambers (s 12 of the Act), but this application has been heard ex parte in open court. The evidence in support of the motion is an affidavit…

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: [1995] FCA 860
Decision Date: 31 Jul 1995

CaseChat Overview and Summary

The matter before the Federal Court of Australia involves an application by Robert William Harriss and Navetron Pty Limited (the applicants) against Fluid Energy Systems Pty Ltd (the respondent). The applicants seek an expedited hearing date and a costs certificate under Section 10 of the Federal Proceedings (Costs) Act 1981, due to the unavailability of a judge to hear the trial, which was specially fixed for a particular day before Justice Einfeld. The procedural history of the case includes initial directions by Justice Beaumont and a subsequent directions hearing by Justice Einfeld, who specially fixed the trial date. However, on the morning of the trial, it was discovered that no judge was available to hear the matter, leading to the applicants' application for a costs certificate.

The legal issues before the court were whether the proceedings could be considered "rendered abortive" under subsection (2) of Section 10, or "discontinued" under subsection (3) of the same section, thereby entitling the applicants to a costs certificate. The applicants argued that the special fixing of the trial date by Justice Einfeld meant that the proceedings were being "conducted" before him, and his unavailability rendered the proceedings abortive. Alternatively, they contended that the proceedings were discontinued when no judge was available on the fixed trial date, necessitating a new hearing and thus fulfilling the requirements of subsection (3).

Justice Whitlam determined that the proceedings were not "conducted" before Justice Einfeld merely because he had specially fixed the trial date. The court also concluded that the proceedings had not been "discontinued" as required by subsection (3), as there had not been an actual hearing of the trial that could be considered to have been discontinued. The court found that the unavailability of a judge did not render the proceedings abortive or discontinued in the formal sense required by the statute. Consequently, the applicants were not entitled to a costs certificate under Section 10 of the Act.

Orders