O'Bryan v Koskie (No. 2) - [2008] FCA 1442

FEDERAL COURT OF AUSTRALIA
O’Bryan v Koskie (No. 2) [2008] FCA 1442
Federal Court Rules O 52 r 38A(1)(d)
O’Bryan v Koskie [2008] FCA 1366
SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 188
DARRYL MARK O'BRYAN v OLGA SARAH KOSKIE, CITY OF MONASH and PETER ROBERT VINCE
VID 266/2008
MARSHALL J
15 SEPTEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 266/2008

BETWEEN:
DARRYL MARK O'BRYAN
Applicant

AND:
OLGA SARAH KOSKIE
First Respondent

CITY OF MONASH
Second Respondent

PETER ROBERT VINCE
Third Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

15 SEPTEMBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The motion of 8 September 2008 is dismissed
2.The applicant pay the first and second respondents’ costs of the motion, such costs to be taxed and then paid by the Trustee of the Bankrupt Estate of the applicant, with the same priority as provided for by section 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the taxed costs of a petitioning creditor.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 266/2008

BETWEEN:
DARRYL MARK O'BRYAN
Applicant

AND:
OLGA SARAH KOSKIE
First Respondent

CITY OF MONASH
Second Respondent

PETER ROBERT VINCE
Third Respondent

JUDGE:

MARSHALL J

DATE:

15 SEPTEMBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant applies by motion to have his appeal from the Federal Magistrates Court reinstated. The circumstances are these. The appeal hearing was listed for 10.15 am on 4 September 2008. All parties were notified according to normal Federal Court practice. The matter was listed to be heard in Court 6A. I opened court on time and when I took appearances it became apparent that there was no appearance for the applicant (the appellant in the appeal). Counsel for the first and second respondent was present. My associate called the matter and the name of the applicant outside Court 6A as is required by Federal Court practice. Pursuant to O 52 r 38A(1)(d) of the Federal Court Rules, I proceeded to hear the appeal. On the basis of written submissions filed with the Court for the applicant, I delivered ex tempore reasons and dismissed the appeal (see O’Bryan v Koskie [2008] FCA 1366). I closed the Court and left the bench.
In his Affidavit in Support of the Motion of 8 September 2008, the applicant states that the Daily Law List on the Court’s website listed the courtroom for the hearing as Court 8D. He also states that the Daily Law List in the entrance foyer of the Court listed the matter as being heard in Court 8D. He states that he proceeded to Court 8D and waited in that courtroom until a few minutes after 10.15 am at which point he went to the Public Counter of the Registry on Level 7 and was advised that the hearing was being heard in Court 6A. The applicant…

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 O'Bryan v Koskie (No. 2)

Details

AGLC: O'Bryan v Koskie (No. 2) [2008] FCA 1442
Case: [2008] FCA 1442
Decision Date: 15 September 2008

CaseChat Overview and Summary

O'Bryan v Koskie (No. 2) involved a dispute between the applicant, O'Bryan, and the first and second respondents, Koskie and another party. The applicant sought relief from a court order made in a previous proceeding, which involved bankruptcy proceedings against O'Bryan. The case was heard in the Federal Court of Australia. The applicant's motion to set aside the previous court order was dismissed by the court.

The legal issues before the court included the circumstances in which a court may set aside a previous order and the appropriate costs orders in such cases. The court considered the principles of finality of judgments and the circumstances in which it may be appropriate to set aside a previous order. The court also considered the appropriate costs orders in such cases, including the priority of costs payable by the bankrupt estate.

The court found that the applicant had not demonstrated any exceptional circumstances that would warrant setting aside the previous order. The court held that the previous order was final and binding, and there were no grounds to set it aside. The court also held that the applicant should pay the costs of the motion, with the costs to be paid by the Trustee of the Bankrupt Estate of the applicant. The court held that the appropriate costs order was one that gave priority to the costs of the petitioning creditor, as provided for by section 109(1)(a) of the Bankruptcy Act 1966 (Cth).

The court's decision was based on a detailed analysis of the relevant legal principles and the circumstances of the case. The court held that the applicant had not demonstrated any exceptional circumstances that would warrant setting aside the previous order, and that the previous order was final and binding. The court also held that the appropriate costs order was one that gave priority to the costs of the petitioning creditor. The court's decision was therefore in line with the principles of finality of judgments and the appropriate allocation of costs in such cases.

Orders

Orders of the court

1. The motion of 8 September 2008 is dismissed

2. The applicant pay the first and second respondents’ costs of the motion, such costs to be taxed and then paid by the Trustee of the Bankrupt Estate of the applicant, with the same priority as provided for by section 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the taxed costs of a petitioning creditor.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J

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Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 266/2008

JUDGE:	MARSHALL J
DATE OF ORDER:	15 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	15 SEPTEMBER 2008
PLACE:	MELBOURNE