McDonald v Colbran (No 2) - [2020] FCA 470

FEDERAL COURT OF AUSTRALIA
McDonald v Colbran (No 2) [2020] FCA 470

File number: SAD 51 of 2019

Judge: CHARLESWORTH J

Date of judgment: 9 April 2020

Catchwords: PRACTICE AND PROCEDURE – order under r 39.03 of the Federal Court Rules 2011 (Cth) for stay of future proceedings against the respondent of limited kind should a costs order not be satisfied – order limited in scope – no suggestion of impecuniosity – order justified where litigant has previously demonstrated an unwillingness to accept prior judgments and where the order may be revoked should circumstances change

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules 2011 (Cth) rr 2.26, 2.27, 39.03, 39.05, 40.04

Cases cited:
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119

Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165

Cox v Journeaux (No 2) (1935) 52 CLR 713

McDonald v Colbran [2019] FCA 1937

McDonald v South Australia [2011] FCA 297

Oshlack v Richmond River Council (1998) 193 CLR 72

Rozenblit v Vainer (2018) 262 CLR 478

Date of hearing: 12 March 2020

Registry: South Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 47

Counsel for the Applicants: The Applicants appeared in person

Counsel for the Respondent: Ms G Walker

ORDERS

SAD 51 of 2019

BETWEEN:
FRANCIS THOMAS MCDONALD

First Applicant

RHODA MCDONALD

Second Applicant

AND:
REGISTRAR COLBRAN

Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

9 APRIL 2020

THE COURT ORDERS THAT:
1.The applicants’ interlocutory application filed on 9 December 2019 is dismissed.
2.The applicants are to pay the respondent’s costs of the following applications, fixed in the sum of $2,959.78:
(a)the applicants’ interlocutory application filed on 9 December 2019;
(b)the respondent’s application for an order in terms sought in [3.2] of the affidavit of Tarley Leideritz affirmed on 27 November 2019.

3.Subject to the order in paragraph 5, the following orders are stayed pending the finalisation of SAD 276 of 2019:
(a)the order in paragraph 2; and
(b)the order in paragraph 4 of the orders made on 29 November 2019.

4.Pursuant to rule 39.03(2) of the Federal Court Rules 2011 (Cth), any further proceedings commenced by either or both of the Applicants which:
(a)name Nicola Colbran as a Respondent; and
(b)seek (in form or in substance) an order of review of a decision pursuant to rule 2.26 to refuse to accept a document which seeks to set aside, reopen or otherwise relitigate the matters the subject of the decision of Besanko J in McDonald v South Australia [2011] FCA 297,

are automatically stayed by operation of this order until such time as the costs order made in paragraph 4 of the orders made on 29 November 2019 has been satisfied by receipt of cleared funds.
5.In the event that a proceeding meeting the description in the order in paragraph 4 is commenced, the stay in paragraph 3 of these orders is lifted such that the costs…

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.

Continue reading McDonald v Colbran (No 2)

Details

AGLC: McDonald v Colbran (No 2) [2020] FCA 470
Case: [2020] FCA 470
Decision Date: 9 April 2020

CaseChat Overview and Summary

The applicants, McDonald, sought an order under rule 39.03 of the Federal Court Rules 2011 (Cth) for a stay of future proceedings against the respondent, Colbran, should a costs order not be satisfied. The applicants had previously demonstrated an unwillingness to accept prior judgments and the matter was being considered in the Federal Court of Australia. The legal issues the court was required to decide were whether the order should be limited in scope, whether there was a suggestion of impecuniosity, and whether the order was justified given the applicants' previous conduct.

The court found that the order should be limited in scope as there was no suggestion of impecuniosity. The court also found that the order was justified as the applicants had previously demonstrated an unwillingness to accept prior judgments. The court noted that the order could be revoked should circumstances change. The court dismissed the interlocutory application filed by the applicants and ordered that they pay the respondent's costs of certain applications. The court also stayed certain orders pending the finalisation of another matter and imposed a stay on any further proceedings commenced by the applicants against the respondent that seek an order of review of a decision to refuse to accept a document that seeks to set aside, reopen or otherwise relitigate the matters the subject of the decision in a previous case.

The final orders of the court were that the interlocutory application filed by the applicants be dismissed, that the applicants pay the respondent's costs of certain applications, that certain orders be stayed pending the finalisation of another matter, and that any further proceedings commenced by the applicants against the respondent that seek an order of review of a decision to refuse to accept a document that seeks to set aside, reopen or otherwise relitigate the matters the subject of the decision in a previous case be automatically stayed until such time as the costs order made in a previous case has been satisfied by receipt of cleared funds. In the event that such a proceeding is commenced, the stay is lifted such that the costs become immediately due and payable from the date of the commencement of the proceeding.

Orders

Orders of the court

1. The applicants’ interlocutory application filed on 9 December 2019 is dismissed.

2. The applicants are to pay the respondent’s costs of the following applications, fixed in the sum of $2,959.78:

(a) the applicants’ interlocutory application filed on 9 December 2019;

(b) the respondent’s application for an order in terms sought in [3.2] of the affidavit of Tarley Leideritz affirmed on 27 November 2019.

3. Subject to the order in paragraph 5, the following orders are stayed pending the finalisation of SAD 276 of 2019:

(a) the order in paragraph 2; and

(b) the order in paragraph 4 of the orders made on 29 November 2019.

4. Pursuant to rule 39.03(2) of the Federal Court Rules 2011 (Cth), any further proceedings commenced by either or both of the Applicants which:

(a) name Nicola Colbran as a Respondent; and

(b) seek (in form or in substance) an order of review of a decision pursuant to rule 2.26 to refuse to accept a document which seeks to set aside, reopen or otherwise relitigate the matters the subject of the decision of Besanko J in McDonald v South Australia [2011] FCA 297,

are automatically stayed by operation of this order until such time as the costs order made in paragraph 4 of the orders made on 29 November 2019 has been satisfied by receipt of cleared funds.

5. In the event that a proceeding meeting the description in the order in paragraph 4 is commenced, the stay in paragraph 3 of these orders is lifted such that the costs become immediately due and payable from the date of the commencement of the proceeding.

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

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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File number:	SAD 51 of 2019
Judge:	CHARLESWORTH J
Date of judgment:	9 April 2020
Catchwords:	PRACTICE AND PROCEDURE – order under r 39.03 of the Federal Court Rules 2011 (Cth) for stay of future proceedings against the respondent of limited kind should a costs order not be satisfied – order limited in scope – no suggestion of impecuniosity – order justified where litigant has previously demonstrated an unwillingness to accept prior judgments and where the order may be revoked should circumstances change
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 2011 (Cth) rr 2.26, 2.27, 39.03, 39.05, 40.04
Cases cited:	Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165 Cox v Journeaux (No 2) (1935) 52 CLR 713 McDonald v Colbran [2019] FCA 1937 McDonald v South Australia [2011] FCA 297 Oshlack v Richmond River Council (1998) 193 CLR 72 Rozenblit v Vainer (2018) 262 CLR 478
Date of hearing:	12 March 2020
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Applicants:	The Applicants appeared in person
Counsel for the Respondent:	Ms G Walker

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	9 APRIL 2020