Minister for Immigration and Ethnic Affairs v Pochi - [1986] FCA 87

Re: AUSTRALIAN TRANSPORT INSURANCE PTY. LTD. and RAYMOND BERTRAM BARTLETT;
GRAEME PHILLIPS ROAD TRANSPORT INSURANCES PTY. LTD. and GRAEME PHILLIPS
And: GRAEME PHILLIPS ROAD TRANSPORT INSURANCES PTY. LTD. and GRAEME PHILLIPS;
AUSTRALIAN TRANSPORT INSURANCE PTY. LTD.; RAYMOND BERTRAM BARTLETT; JSOEPH
FRANCIS McNEANY; CHRISTOPHER FRANK ALDERTON; MARY ROGERS and LES CLARKE
No. VG 273 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.

CATCHWORDS

Practice and Procedure - discretion to award costs of a successful party on a solicitor and client basis - unsuccessful allegations of fraud and conspiracy - failure of cross-claimant to give evidence in support of claim.

Federal Court of Australia Act 1976 s.43(2)

Federal Court Rules O.35 r.5

HEARING

MELBOURNE

#DATE 25:3:1986

Counsel for the applicants and cross-respondents: Mr P Hayes

Counsel for the respondents and cross-claimants: Mr J.W.K. Burnside

Solicitors for the applicants and cross respondents: Gillotts

Solicitors for the respondents and cross-claimants: Cornwall Stodart & Co.

ORDER

1. The respondents and cross-claimants pay the applicants' and cross-respondents' costs, including reserved costs, to be taxed on a party and party basis.

2. The order of 20 December 1985 made in these proceedings be varied by adding the words "such fine to be paid to the District Registrar of this Court at 450 Little Bourke Street, Melbourne by 22 April 1986" to order no. 4 therein.

3. The respondent and cross- claimant, Graeme Phillips, have liberty to apply within 14 days in relation to the time for payment of the fine.

(NOTE: Settlement and entry of orders is dealt with in O.36 of

the Federal Court Rules.)

JUDGE1

In this matter I gave judgment for the applicants and cross-respondents on 20 December 1985 and reserved questions of costs. Counsel for the successful parties has now argued that his clients should have an order for costs on a "solicitor and client", rather than a "party and party", basis.

The arguments put in favour of such an order may be summarized as follows:

1. Very serious allegations of fraud and conspiracy were

made which were found to be entirely without foundation.

2. The respondents/cross-claimants, and in particular

Graeme Phillips, conducted the litigation in a high-handed and oppressive way

(a) by securing an Anton Pillar order, permitting the seizure and copying of office records held by Australian Transport Insurance Pty Ltd, based on affidavits alleging matters which were not substantiated by later evidence,

(b) by making allegations to police which instigated police inquiries at the same time the litigation was being

conducted,

(c) by making and repeating, to a wide range of people, allegations against the applicants and cross-respondents in the face of Court orders that such allegations were not to be repeated,

(d) by not pursuing at the hearing many of the allegations made in the pleadings, and

(e) by failing to go into the witness-box to support any of the allegations which had previously been made publicly and in pleadings and affidavits.

I have no doubt that I…

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 Minister for Immigration and Ethnic Affairs v Pochi

Details

AGLC: Minister for Immigration and Ethnic Affairs v Pochi [1986] FCA 87
Case: [1986] FCA 87
Decision Date: 25 MARCH 1986

CaseChat Overview and Summary

The case of Minister for Immigration and Ethnic Affairs v Pochi involved the Minister for Immigration and Ethnic Affairs as the applicant and Pochi as the respondent, with Graeme Phillips being the cross-claimant. The dispute arose from immigration matters, with the Minister seeking to enforce a deportation order against Pochi, and Phillips making a cross-claim against Pochi for damages. The matter was heard in the Federal Court of Australia.

The legal issues before the court encompassed the Minister's application for costs on a solicitor and client basis, the failure of Phillips to provide evidence in support of his cross-claim, and the proper interpretation and execution of the court's orders, particularly concerning the payment of a fine. The court had to consider whether the unsuccessful cross-claimant, Phillips, should be liable for costs on a solicitor and client basis and how to ensure the enforcement of the court's orders regarding the fine.

The court found that Phillips's cross-claim was without merit as he failed to provide any evidence in support of it. Consequently, the court awarded costs against Phillips on a solicitor and client basis. The court also addressed the enforcement of the fine, ordering it to be paid to the District Registrar of the Court by a specified date. Phillips was granted leave to apply for an extension of time to pay the fine if necessary.

The final orders included the respondents and cross-claimants paying the applicants' and cross-respondents' costs to be taxed on a party and party basis. The court's order from December 20, 1985, was varied to include specific instructions for the payment of the fine. Additionally, Phillips was permitted to apply for an extension to the deadline for paying the fine within 14 days of the court's decision.

Orders

Orders of the court

1. The respondents and cross-claimants pay the applicants' and cross-respondents' costs, including reserved costs, to be taxed on a party and party basis.

2. The order of 20 December 1985 made in these proceedings be varied by adding the words "such fine to be paid to the District Registrar of this Court at 450 Little Bourke Street, Melbourne by 22 April 1986" to order no. 4 therein.

3. The respondent and cross- claimant, Graeme Phillips, have liberty to apply within 14 days in relation to the time for payment of the fine.

(NOTE: Settlement and entry of orders is dealt with in O.36 of

the Federal Court Rules.)

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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