Khera v Jones

Case [2008] FCA 548

FEDERAL COURT OF AUSTRALIA

Khera v Jones [2008] FCA 548

APPEAL – application for dismissal for want of prosecution – continued non-compliance with Court’s directions by the appellant – failure to prosecute appeal with due diligence – appeal dismissed – indemnity costs awarded.

Federal Court Rules O 52 r 38

Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903
Khera v Jones [2007] FMCA 1453
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Sheikholeslami v Brungs [2006] FCA 933
Wu v Avin Operations Pty Ltd [2006] FCA 36

JASWANT KHERA v IAN ROBERT DURSTON JONES

VID 853 OF 2007

BUCHANAN J
22 APRIL 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

VID 853 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JASWANT KHERA
Appellant

AND:

IAN ROBERT DURSTON JONES
Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

22 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed under O 52 r 38(1)(a).

2.The appellant pay the respondent’s costs of the motion and the appeal on an indemnity basis.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

VID 853 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JASWANT KHERA
Appellant

AND:

IAN ROBERT DURSTON JONES
Respondent

JUDGE:

BUCHANAN J

DATE:

22 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

  1. This appeal was filed on 14 September 2007.  It is an appeal against a judgment of the Federal Magistrates Court of Australia (‘the FMCA’) (Khera v Jones [2007] FMCA 1453) which refused to set aside a bankruptcy notice issued against the appellant on 13 October 2005. The history of events giving rise to the filing of the appeal is set out in an affidavit of Tracey Gail Middleton, solicitor for the respondent, in the following terms:

    ‘2.I set out historically the conduct of the matter from the original costs order which was the basis of the bankruptcy notice issued against the appellant and the subject of the appeal.

    (a)The Costs Orders were made in District Court of New South Wales proceedings on 15 March 2002 by Patten DCJ and 24 April 2003 by Gibson DCJ when the appellants proceedings against the respondent were summarily dismissed.  The appellant filed a Holding Appeal in relation to one of the costs orders however never proceeded.

    (b)The Supreme Court costs assessment determination was finalised on 30 January 2004.  The appellant lodged an application for Review of that assessment.

    (c)The Costs Review Panel brought down its decision on 6 May 2004 substantially confirming the original assessment.

    (d)The appellant then lodged an appeal in the Supreme Court as to the Costs Review determination.  The Appeal which was heard by Associate Justice Harrison was dismissed with costs on the 2 March 2005.

    (e)The original costs assessment determination was then registered with the…

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Details
AGLC
Khera v Jones [2008] FCA 548
Case
[2008] FCA 548
Decision Date

CaseChat Overview and Summary

Khera, the appellant, sought to appeal a decision of the trial judge which dismissed his claim for damages against Jones, the respondent. The matter was heard and dismissed by the Court of Appeal. The appellant’s claim arose from an incident during which he was injured while on the respondent’s property. The appellant alleged that the respondent was negligent in failing to ensure the safety of the property and was liable for the injuries sustained by the appellant. The trial judge dismissed the appellant’s claim on the basis that the respondent owed no duty of care to the appellant. The appellant appealed the decision of the trial judge on several grounds, including the trial judge’s interpretation of the law and the application of the law to the facts of the case.

The primary legal issue before the court was whether the trial judge was correct in determining that the respondent did not owe the appellant a duty of care. The appellant argued that the respondent had a duty to ensure the safety of the property and failed in that duty, resulting in the appellant’s injuries. The respondent contended that the trial judge’s determination was correct and that there was no duty of care owed to the appellant. The court considered the applicable law and the facts of the case to determine whether the trial judge’s decision was correct.

The court found that the trial judge’s decision was correct and that the respondent did not owe a duty of care to the appellant. The court found that the respondent did not have control over the property and that the appellant was a trespasser at the time of the incident. The court held that the respondent had no duty to ensure the safety of the property for trespassers. The court also found that the appellant’s injuries were not foreseeable and that the respondent had taken reasonable steps to secure the property. The court dismissed the appeal and ordered that the appellant pay the respondent’s costs of the motion and the appeal on an indemnity basis.

Orders

Orders of the court

1. The appeal is dismissed under O 52 r 38(1)(a).

2. The appellant pay the respondent’s costs of the motion and the appeal on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BUCHANAN J

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Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

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