Krajniw v Newman - [2014] FCA 1454

FEDERAL COURT OF AUSTRALIA
Krajniw v Newman [2014] FCA 1454

Citation: Krajniw v Newman [2014] FCA 1454

Parties: TONY KRAJNIW v CAMPBELL NEWMAN MP PREMIER, ANDREW POWELL MINISTER FOR ENVIRONMENT AND HERITAGE PROTECTION, AARRON DILLAWAY MP, JON BLACK DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, DEAN ELLWOOD DEPUTY DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, TAMARA O’SHEA DEPUTY DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, TONY ROBERTS DEPUTY DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, IAN STEWART POLICE COMMISSIONER, GRAHAM QUIRK - MAYOR BRISBANE CITY COUNCIL, BRISBANE CITY COUNCIL, COLIN JENSEN CHIEF EXECUTIVE BRISBANE CITY COUNCIL, RYAN MURPHY - COUNCILLOR BRISBANE CITY COUNCIL, MICHAEL LAWSON REGIONAL COORDINATOR NATURAL ENVIRONMENT EAST BRISBANE CITY COUNCIL, KEN EDIE TECHNICAL ARBORICULTURE OFFICER BRISBANE CITY COUNCIL, MICK MAHER NATURAL ENVIRONMENT TECHNICAL OFFICER BRISBANE CITY COUNCIL, CRAIG HARDY [sic] - RANGER BRISBANE CITY COUNCIL and BRISBANE TREE SERVICES

File number: QUD 574 of 2014

Judge: REEVES J

Date of judgment: 18 December 2014

Legislation: Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Cases cited: Donoghue v Commissioner of Taxation [2013] FCA 84
Krajniw v Brisbane City Council (No 2) [2011] FCA 563

Date of hearing: 18 December 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 13

Counsel for the Applicant: Mr Krajniw appeared on his own behalf

Counsel for the First to Eighth Respondents: Mr JG Lyons

Solicitor for the Ninth to Sixteenth Respondents: Ms KR Johnston, Brisbane City Legal Practice

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 574 of 2014

BETWEEN:
TONY KRAJNIW
Applicant

AND:
CAMPBELL NEWMAN MP PREMIER
First Respondent

ANDREW POWELL
MINISTER FOR ENVIRONMENT AND HERITAGE PROTECTION
Second Respondent

AARRON DILLAWAY MP
Third Respondent

JON BLACK
DIRECTOR GENERAL
DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION
Fourth Respondent

DEAN ELLWOOD
DEPUTY DIRECTOR GENERAL
DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION
Fifth Respondent

TAMARA O’SHEA
DEPUTY DIRECTOR GENERAL
DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION
Sixth Respondent

TONY ROBERTS
DEPUTY DIRECTOR GENERAL
DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION
Seventh Respondent

IAN STEWART
POLICE COMMISSIONER
Eighth Respondent

GRAHAM QUIRK - MAYOR
BRISBANE CITY COUNCIL
Ninth Respondent

BRISBANE CITY COUNCIL
Tenth Respondent

COLIN JENSEN
CHIEF EXECUTIVE
BRISBANE CITY COUNCIL
Eleventh Respondent

RYAN MURPHY - COUNCILLOR
BRISBANE CITY COUNCIL
Twelfth Respondent

MICHAEL LAWSON
REGIONAL COORDINATOR
NATURAL ENVIRONMENT EAST
BRISBANE CITY COUNCIL
Thirteenth Respondent

KEN EDIE
TECHNICAL ARBORICULTURE OFFICER
BRISBANE CITY COUNCIL
Fourteenth Respondent

MICK MAHER
NATURAL ENVIRONMENT TECHNICAL OFFICER
BRISBANE CITY COUNCIL
Fifteenth Respondent

CRAIG HARDY [sic] - RANGER
BRISBANE CITY COUNCIL
Sixteenth Respondent

BRISBANE TREE SERVICES
Seventeenth Respondent

JUDGE:

REEVES J

DATE OF ORDER:

18 DECEMBER 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicant’s application for interlocutory relief contained in the originating application filed 5 November 2014 is dismissed.

2.The applicant pay the ninth to sixteenth respondents’ (inclusive) costs of and incidental to the application referred to in order 1.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 574 of 2014

BETWEEN:
TONY…

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: [2014] FCA 1454
Decision Date: 18 December 2014

CaseChat Overview and Summary

The case of Krajniw v Newman involved a dispute between the applicant, Krajniw, and various respondents, including Newman. The applicant sought interlocutory relief in an originating application filed on 5 November 2014. The Federal Court was tasked with deciding whether Krajniw's application should be granted, and if not, whether costs should be awarded to the respondents.

The legal issues before the court were primarily concerned with the merits of Krajniw's application for interlocutory relief and whether the applicant had demonstrated sufficient grounds for the court to grant such relief. The court also needed to consider the appropriate costs order under Rule 39.32 of the Federal Court Rules 2011, should the application be dismissed.

The court found that the applicant had not demonstrated sufficient grounds to warrant the granting of interlocutory relief. Consequently, the application was dismissed, and the court ordered that the applicant pay the costs of and incidental to the application to the ninth to sixteenth respondents, as specified in Rule 39.32 of the Federal Court Rules 2011. The reasoning was based on the lack of merit in the application, which did not meet the threshold for interlocutory relief, and the application of the rules governing costs in such cases.

Orders

Orders of the court

1. The applicant’s application for interlocutory relief contained in the originating application filed 5 November 2014 is dismissed.

2. The applicant pay the ninth to sixteenth respondents’ (inclusive) costs of and incidental to the application referred to in order 1.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Krajniw v Newman [2014] FCA 1454
Parties:	TONY KRAJNIW v CAMPBELL NEWMAN MP PREMIER, ANDREW POWELL MINISTER FOR ENVIRONMENT AND HERITAGE PROTECTION, AARRON DILLAWAY MP, JON BLACK DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, DEAN ELLWOOD DEPUTY DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, TAMARA O’SHEA DEPUTY DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, TONY ROBERTS DEPUTY DIRECTOR GENERAL DEPARTMENT ENVIRONMENT AND HERITAGE PROTECTION, IAN STEWART POLICE COMMISSIONER, GRAHAM QUIRK - MAYOR BRISBANE CITY COUNCIL, BRISBANE CITY COUNCIL, COLIN JENSEN CHIEF EXECUTIVE BRISBANE CITY COUNCIL, RYAN MURPHY - COUNCILLOR BRISBANE CITY COUNCIL, MICHAEL LAWSON REGIONAL COORDINATOR NATURAL ENVIRONMENT EAST BRISBANE CITY COUNCIL, KEN EDIE TECHNICAL ARBORICULTURE OFFICER BRISBANE CITY COUNCIL, MICK MAHER NATURAL ENVIRONMENT TECHNICAL OFFICER BRISBANE CITY COUNCIL, CRAIG HARDY [sic] - RANGER BRISBANE CITY COUNCIL and BRISBANE TREE SERVICES
File number:	QUD 574 of 2014
Judge:	REEVES J
Date of judgment:	18 December 2014
Legislation:	Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Cases cited:	Donoghue v Commissioner of Taxation [2013] FCA 84 Krajniw v Brisbane City Council (No 2) [2011] FCA 563
Date of hearing:	18 December 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Applicant:	Mr Krajniw appeared on his own behalf
Counsel for the First to Eighth Respondents:	Mr JG Lyons
Solicitor for the Ninth to Sixteenth Respondents:	Ms KR Johnston, Brisbane City Legal Practice

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 574 of 2014

JUDGE:	REEVES J
DATE OF ORDER:	18 DECEMBER 2014
WHERE MADE:	BRISBANE