PETER NELIPA v DR JAMES ROBERTSON AND COMMONWEALTH OF AUSTRALIA
[2009] ACTSC 16 (6 March 2009)
COSTS – discontinuance – effect – whether defendant should pay discontinuing plaintiff’s costs – considerations – turns on its own facts – Court Procedures Rules 2006 (ACT) r 1163(2).
COSTS – model litigant obligations – effect.
COSTS – pre-trial procedures – effect – freedom of information requests – letter before action – response to inquiries.
Australian Federal Police Act 1979 (Cth), s 26E(2)(b), 72
Freedom of Information Act 1982 (Cth)
Complaints (Australian Federal Police) Act 1981 (Cth), s 6
Judiciary Act 1903 (Cth), s 55ZF
Court Procedures Rules 2006 (ACT), rr 1160(1), 1163(2)
Legal Services Directions 2005 (Cth)
Dickson v Whiddett [2001] FCA 585
Jones v Dunkel (1959) 101 CLR 298
Director-General of Education & Ors v Suttling (1987) 162 CLR 427
Chapman v Australian Federal Police Commissioner (1983) 76 FLR 428
Oshlack v
Foots v The Southern Cross Mine Management Pty Ltd & Ors (2007) 241 ALR 32
Knight & Anor v F P Special Assets Limited (1992) 174 CLR 178
Probiotec Ltd and Ors v
One.Tel Limited & Ors v Commissioner of Taxation (2000) 101 FCR 548
Verna Trading Pty Limited v New India Assurance Co Ltd [1991] 1 VR 129
Melbourne Steamship Co Ltd v
Commonwealth of Australia v Smith [2007] NSWCA 168
Kelson & Anor v Forward (1995) 60 FCR 39
Scott v Handley (1999) 58 ALD 373; [1999] FCA 404
Commonwealth of Australia v Smith [2007] NSWCA 168
Priest v New South Wales [2007] NSWSC 41
Wodrow v Commonwealth of
Badraie v Commonwealth of Australia& Ors (2005) 195 FLR 119
Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568
Pacific National (ACT) Ltd v
Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537
JUDGMENT
No. SC 516 of 2000
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 March 2009
IN THE SUPREME COURT OF THE )
) No. SC 516 of 2000
BETWEEN:PETER NELIPA
Plaintiff
AND:DR JAMES ROBERTSON
First Defendant
AND:COMMONWEALTH OF
AUSTRALIA
Second Defendant
ORDER
Judge: Refshauge J
Date: 6 March 2009
Place:
THE COURT ORDERS THAT:
The plaintiff have leave to discontinue the proceedings.
The plaintiff file and serve a notice of discontinuance of the proceedings within 14 days.
Upon the filing of the notice of discontinuance:
(a) the plaintiff pay the defendants' costs of the proceedings up to the end of the day on which the plaintiff’s lawyers received and perused the second defendant’s affidavit as to documents sworn on 14 March 2002, and also the costs of the inspection of the documents disclosed in that affidavit as to documents; and
(b) the defendants pay the plaintiff’s costs of the proceedings from the end of the day on which the plaintiff’s lawyers received and…
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- AGLC
- Nelipa v Robertson [2009] ACTSC 16
- Case
- [2009] ACTSC 16
- Decision Date
CaseChat Overview and Summary
The court examined the relevant provisions of the Court Procedures Rules 2006 (ACT), specifically rule 1163(2), which deals with the allocation of costs upon discontinuance. It found that the matter of costs allocation in such circumstances is highly fact-specific. The court considered the conduct of both parties and the stage of the proceedings at which the discontinuance occurred. The court concluded that given the circumstances, including the pre-trial stage and the plaintiff's failure to adequately prepare and proceed with the case, it was just for the plaintiff to bear the defendants' costs up to a certain point, while the defendants would bear the plaintiff's costs from that point onwards.
The court ordered that the plaintiff have leave to discontinue the proceedings, with specific timelines for filing and serving the notice of discontinuance. It further ordered that upon filing the notice of discontinuance, the plaintiff would pay the defendants' costs up to a certain date, and the defendants would pay the plaintiff's costs from that date, excluding specific inspection costs and the costs of the discontinuance application itself. Each party was ordered to bear their own costs of the discontinuance application.
Orders
Orders of the court
1. The plaintiff have leave to discontinue the proceedings.
2. The plaintiff file and serve a notice of discontinuance of the proceedings within 14 days.
3. Upon the filing of the notice of discontinuance:
(a) the plaintiff pay the defendants' costs of the proceedings up to the end of the day on which the plaintiff's lawyers received and perused the second defendant's affidavit as to documents sworn on 14 March 2002, and also the costs of the inspection of the documents disclosed in that affidavit as to documents; and
(b) the defendants pay the plaintiff's costs of the proceedings from the end of the day on which the plaintiff's lawyers received and perused the second defendant's affidavit as to documents sworn on 14 March 2002, other than the costs of the inspection of the documents disclosed in the second defendant's affidavit as to documents sworn on 14 March 2002 and save for the costs of this application.
4. Each party pay their own costs of this application.
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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