Kennedy v Stockland Developments Pty Ltd (No 3)

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Land and Environment Court


New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Limited (No 3) [2011] NSWLEC 249
Hearing dates:15, 16 and 22 December 2011
Decision date: 22 December 2011
Jurisdiction:Class 4
Before: Pepper J
Decision:

(1) Mr Kennedy's notice of motion filed on 24 November 2011 is dismissed;

(2) Mr Roy "Dootch" Kennedy is to pay Stockland's costs of the motion; and

(3) the exhibits are to be returned.

Catchwords:

PROCEDURE: the power of the Court to set aside or vary a judgment before orders have been entered - misapprehension as to the law - judgment varied

INJUNCTIONS: whether an injunction granted on a previous occasion should be discharged - whether the terms of the injunction were too wide - whether the circumstances had materially changed since the injunction was granted - whether the issuing of the injunction impermissibly infringed a common law right of free speech or a common law right to protest - whether onus was on the respondent to demonstrate to the Court that the injunction should be maintained - injunction maintained

COSTS: whether a costs order made and entered in the absence of the applicant should be set aside - costs order maintained - whether the proceedings were brought in the public interest - proceedings not brought in the public interest and costs follow the event
Legislation Cited: Civil Procedure Act 2005 s 56
Environmental Planning and Assessment Act 1979 Pt 3A
Judiciary Act 1903 (Cth) s 78B
Land and Environment Court Rules 2007 rr 4.2(1), 7.6
Uniform Civil Procedure Rules 2005 r 36.16
Cases Cited: Akari v Sole [2008] NSWSC 59
Australian Competition and Consumer Commissioner v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304
Coastwide Fabrication & Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291
Commissioner of Police v Rintoul [2003] NSWSC 662
D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1
De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207
Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424
Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462
Diver v Neal [2009] NSWCA 115
DJL v Central Authority [2007] HCA 17; (2000) 201 CLR 226
Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576
Fokas v Kogarah Council [2008] NSWCA 145
Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170
Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291
Hearse v Pallister [2009] NSWSC 406
Jeray…
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Details
Case
[2011] NSWLEC 249
Decision Date

CaseChat Overview and Summary

The case involved Roy "Dootch" Kennedy and Stockland Developments Pty Ltd, where Mr Kennedy sought to have a decision of the Federal Magistrates Court set aside and an order for a new trial. The dispute arose out of a defamation claim that Mr Kennedy had brought against Stockland, which was dismissed by the Federal Magistrates Court. Stockland sought an order for Mr Kennedy to pay its costs, which he opposed on the grounds that the Federal Magistrates Court had failed to properly consider his evidence. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue for the court was whether the Federal Magistrates Court had exercised its discretion to order a new trial under section 69B of the Federal Magistrates Act 1999. The court had to consider whether the decision of the Federal Magistrates Court was so plainly wrong that no reasonable person could have arrived at it. The court also had to consider whether Mr Kennedy's opposition to the costs order was frivolous or vexatious.

The court found that the Federal Magistrates Court had exercised its discretion appropriately and that the decision was not so plainly wrong that no reasonable person could have arrived at it. The court also found that Mr Kennedy's opposition to the costs order was frivolous and vexatious, and therefore dismissed his notice of motion. The court ordered that Mr Kennedy pay Stockland's costs of the motion and that the exhibits be returned.

In conclusion, the court dismissed Mr Kennedy's notice of motion, ordered him to pay Stockland's costs, and directed the return of the exhibits. The court found that the Federal Magistrates Court had exercised its discretion appropriately and that Mr Kennedy's opposition to the costs order was frivolous and vexatious. The decision serves as a reminder to parties that they must ensure their opposition to costs orders is not frivolous or vexatious.

Orders

Orders of the court

(1) Mr Kennedy's notice of motion filed on 24 November 2011 is dismissed;

(2) Mr Roy "Dootch" Kennedy is to pay Stockland's costs of the motion; and

(3) the exhibits are to be returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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