AROHA LAWRANCE v COMMONWEALTH OF AUSTRALIA AND ORS NSD 2437 OF 2007
FLICK J 4 APRIL 2008 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2437 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
AROHA LAWRANCE Appellant
AND:
COMMONWEALTH OF AUSTRALIA First Respondent
STATE OF NEW SOUTH WALES Second Respondent
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Third Respondent
GENERAL MANAGER, CRS AUSTRALIA Fourth Respondent
AUSTRALIAN GOVERNMENT SOLICITOR Fifth Respondent
ANDRAS MARKUS Sixth Respondent
REGISTRAR, FEDERAL COURT OF AUSTRALIA Seventh Respondent
KIM LACKENBY Eighth Respondent
MICHAEL WALL Ninth Respondent
MICHAEL PACKER Tenth Respondent
JOHN PETKOVSHEK Eleventh Respondent
JULIET CURTAIN Twelfth Respondent
GERARD ENGLISH Thirteenth Respondent
JUDGE:
FLICK J
DATE OF ORDER:
4 APRIL 2008
WHERE MADE:
SYDNEY
THE ORDERS OF THE COURT ARE:
1.The Appellant’s Application seeking a stay of the order for costs as made by the Federal Magistrates Court on 30 November 2007 be dismissed.
2.The Appellant to provide to the First and Third to Thirteenth Respondents security for costs in the sum of $10,000, to be provided as follows:
(i) 50% of which, namely $5,000, within 21 days; and
(ii) the remaining 50%, namely a further $5,000, 21 days prior to the hearing of the appeal.
3.The proceedings as against the First and Third to Thirteenth Respondents be stayed in the event that such security as has been ordered is not…
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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AGLC
Lawrance v Commonwealth [2008] FCA 417
Case
[2008] FCA 417
Decision Date
CaseChat Overview and Summary
This case involves an appeal brought by ARoha Lawrance against the Commonwealth and others. The appeal stems from a decision made by a Federal Magistrate dismissing Lawrance's application and ordering her to pay the costs of the proceedings. Lawrance filed a Notice of Appeal in the Federal Court of Australia, seeking to challenge the decision made by the Federal Magistrate. The Court was required to decide whether to suspend the order for costs, whether to order security for costs, and the quantum of such security if ordered. The court considered the principles governing the exercise of the discretion to order security for costs and applied them to the present proceedings. The court found that the appeal had limited prospects of success, that there was a real prospect that any order for costs obtained against Lawrance would not be satisfied, and that there was a real risk that an order requiring security could have the effect of stifling the appeal. The court also found that any impecuniosity of Lawrance was not occasioned by the conduct of any of the Respondents. The court ordered that Lawrance provide security for costs in the sum of $10,000 to be provided by the First and Third to Thirteenth Respondents and $12,000 to be provided by the Second Respondent. The court also ordered that the proceedings be stayed in the event that such security as had been ordered was not provided within the time specified. The court further ordered that Lawrance pay the costs of the Respondents of and incidental to the hearing of their Notices of Motion and such costs as had been incurred in respect to the hearing of the Appellant's Application for a stay of the orders of the Federal Magistrate.