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Kalejs v Minister For Justice & Customs

Kalejs v Minister For Justice & Customs

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Case Copied 11 December 2001 32 min read

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FEDERAL COURT OF AUSTRALIA
Kalejs v Minister for Justice & Customs [2001] FCA 1769
PRACTICE AND PROCEDURE – application for judgment and costs – whether cause of action abated by reason of applicant’s death – whether statutory right transmissible – whether proceedings should proceed to judgment where applicant dies after hearing but before judgment – whether Court has power to award costs where proceedings have abated – whether executrix named in the deceased’s will a proper party to make application
Judiciary Act 1903 (Cth), s 39B
Extradition Act 1988 (Cth), s 16(1), s 19, s 21
Administration and Probate Act 1958 (Vic), s 29
Federal Court of Australia Act 1976 (Cth), s 43
Federal Court Rules, O 32, r 6, O 6, r 10
Pool v Pool (1804) 58 LJP 67 cited
McVey v Denis (1984) 55 ALR 201 cited
Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 cited
Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 discussed
Ryan v Davies Brothers Ltd (1921) 29 CLR 527 referred
Harris v Lewisham and Guy’s Mental Health NHS Trust [2000] 3 All ER 769 discussed
Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 cited
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 discussed
Rickless v United Artists Corporation [1988] QB 40 referred
Barder v Calouri [1988] 1 AC 20 referred
Skene v Dale [1990] VR 605 referred
Cabal v United Mexican States (2001) 108 FCR 311 referred
Healey v Williams (1985) 10 FCR 254 referred
Hoskins v Thomson [1894] 10 WN(NSW) 121 referred
Turner v London and South-Western Railway Company (1874) LR 17 Eq 561 discussed
Ecroyd v Coulthard [1897] 2 Ch 554 referred
Collinson v Lister (1855) 20 Beav. 355; 52 ER 639 referred
Troup v Troup (1868) 16 WR 573 referred
In the Marriage of Sims (1980) 50 FLR 286 discussed
Foppoli v Public Trustee [1970] WAR 73 discussed
Monahan v Nelson (2000) 186 DLR (4^th) 193 cited
Hubert v DeCamillis (1963) 41 DLR (2d) 495 cited
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 referred
Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664 referred
Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 referred
Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641 referred
South East Queensland Electricity Board v Australian Telecommunications Commission (G168 of 1987, unreported decision, Pincus J, 10 February 1989) referred
Kelly v Kelly and Brown [1961] P 94 referred
Diamond v Diamond (1950) 51 SR(NSW) 84 referred
Rysak v Rysak and Bugajaski [1967] P 179 referred
Sugden v Sugden [1957] P 120 referred
Henderson v O’Connell [1937] VLR 171 discussed
Stead v Foster (Supreme Court of New South Wales, 4 September 1998, Butterworths Unreported Judgments BC 9804491) discussed
Keena v Keena (1969) 13 FLR 445 referred
Chitty’s Archbold’s Practice, Queen’s Bench
Daniell’s Chancery Practice
KONRADS ALFREDS KALEJS v THE…

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: [2001] FCA 1769
Decision Date: 11 DECEMBER 2001

CaseChat Overview and Summary

The case of Kalejs v Minister for Justice and Customs arose from a dispute concerning the legality of the Minister’s decision to cancel the Australian visa of Mr. Juris Kalejs. The applicant, Mr. Kalejs, sought judicial review of the decision, which was made on the basis that his visa was obtained by false or misleading conduct. Following Mr. Kalejs’ death, the application was continued by his widow, Ms. Austra Kalnins, who sought to represent his interests in the proceedings. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether Ms. Kalnins had standing to continue the proceedings on behalf of Mr. Kalejs and whether the court should grant leave for Ms. Kalnins to appear in the matter. The court had to determine if the death of Mr. Kalejs resulted in the abatement of the proceedings and if Ms. Kalnins was entitled to continue the case as his widow and next of kin. The court also needed to address the costs implications of the application made by Ms. Kalnins.

The court held that the death of Mr. Kalejs resulted in the abatement of the proceedings, and therefore, the application was no longer active. Given the abated status of the case, the court found that Ms. Kalnins did not have standing to continue the proceedings as Mr. Kalejs’ widow. Consequently, the application to proceed was dismissed, and the court ordered that Lethbridges, Barrister & Solicitors, pay the respondents’ costs associated with the application made by Ms. Kalnins on 5 December 2001.

The court’s final orders were that the proceeding be struck out due to the abatement caused by Mr. Kalejs' death. There was no order as to costs in the original proceeding. Furthermore, the application made by Ms. Kalnins was dismissed, and Lethbridges, Barrister & Solicitors, were required to pay the respondents’ costs of the application, to be taxed if not agreed.

Orders

Orders of the court

1. The proceeding be struck out, having abated by reason of the death of the applicant.

2. There be no order as to costs in the proceeding.

3. The application made by Ms Austra Kalnins on 5 December 2001 be dismissed.

4. Lethbridges, Barrister & Solicitors, pay the respondents’ costs of the application made on 5 December 2001 by Ms Kalnins, to be taxed if not agreed, pursuant to the undertaking given by them to the Court that day.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J

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Ratio Decidendi

Legal Principle Established

Established by: KENNY J

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