FEDERAL COURT OF AUSTRALIA
Modra v State of Victoria [2013] FCA 779
Citation: Modra v State of Victoria [2013] FCA 779 Parties: LUKE MODRA (BY HIS NEXT FRIEND ELLEN MODRA) v STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA) File number: VID 844 of 2010 Judge: TRACEY J Date of judgment: 7 August 2013 Catchwords: COSTS – application for taxation of costs order made pursuant to s 37N of the Federal Court of Australia Act 1976 (Cth) – whether costs order to be taxed at interlocutory stage of the proceeding – application granted. Legislation: Federal Court of Australia Act 1976 (Cth) – s 37N
Federal Court Rules 2011 – r 40.13Cases cited: Kuek [2012] FCA 494 – referred to
Kuek v The Honourable Justice Gray & Ors [2012] HCATrans 273 – referred to
Modra v State of Victoria (2012) 205 FCR 445 – referred toDate of hearing: 2 August 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: Mr P Bingham Solicitor for the Applicant: Access Law Counsel for the Respondent: Mr C P Young Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 844 of 2010
BETWEEN: LUKE MODRA (BY HIS NEXT FRIEND ELLEN MODRA)
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA)
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
2 AUGUST 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Notwithstanding Rule 40.13 of the Federal Court Rules 2011 the costs orders made in paragraph 1 of the orders made by Justice Gray on 19 March 2012 be taxed immediately.
2.Mr Gabriel Kuek pay the respondent’s costs of the present interlocutory application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 844 of 2010
BETWEEN: LUKE MODRA (BY HIS NEXT FRIEND ELLEN MODRA)
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA)
Respondent
JUDGE:
TRACEY J
DATE:
2 AUGUST 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court an application by the respondent, the State of Victoria, for an order to be made that a costs order, made against a solicitor, Mr Gabrielle Kuek, personally by Gray J on 19 March 2012, be taxed immediately.
The background to the application is to be found in the reasons for decision of his Honour Gray J, and need not be repeated in great detail: see Modra v State of Victoria (2012) 205 FCR 445. Suffice it to say that the order was made because his Honour considered that costs had been thrown away in the proceeding because of the filing of two successive deficient statements of claim by Mr Kuek’s firm which, at the time, was acting for the applicant in the proceeding, Luke Modra.
His Honour’s order was subject to an application for leave to appeal that was considered by Jessup J: see Kuek [2012] FCA 494
Keep reading for free
Create a free CaseChat account to read Modra v State of Victoria and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] FCA 779
- Decision Date
CaseChat Overview and Summary
The court considered several factors in its reasoning. Firstly, the order made against Mr. Kuek was an extraordinary one, targeting a solicitor rather than a party to the proceeding. The burden of this order did not affect the applicant due to the prohibition under section 37N of the Federal Court of Australia Act 1976 from recovering such costs from the client. Additionally, Mr. Kuek had ceased to represent the applicant after Justice Gray raised the prospect of making a personal order against him, effectively ending his involvement in the proceeding. The court also noted that the proceeding was far from concluded, with the trial scheduled for May 2014. Mr. Kuek opposed the application on grounds including the delay in making the application for dispensation from Rule 40.13, the possibility of the High Court quashing the orders, and potential financial difficulties if he were compelled to pay the costs. The court found these arguments unconvincing, particularly in light of the careful reasoning behind Justice Gray's order and the low likelihood of success in the ongoing High Court proceedings.
In conclusion, the court granted the State of Victoria's application, ordering that the costs orders made by Justice Gray on 19 March 2012 be taxed immediately, notwithstanding Rule 40.13 of the Federal Court Rules. The court also ordered that Mr. Gabriel Kuek pay the respondent's costs of the interlocutory application.
Orders
Orders of the court
Full text does not contain this section.
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.